From: jim bell <jimbell@pacifier.com>
Date: Sun, 21 Apr 1996 15:20:52 +0800
To: Black Unicorn <unicorn@schloss.li>
Subject: OS/2 encryption utilities
Message-ID: <m0uAqM0-000909C@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 10:13 PM 4/20/96 -0400, Black Unicorn wrote:
>On Sat, 20 Apr 1996, jim bell wrote:

>Perhaps Mr. Bell would have been happier if I had said "bring forth a 
>motion calling for measures to deal with the defendant's supposed 
>conduct in bad faith in answering the discovery requests presented by the 
>plaintiff."  Somehow, however, I doubt it.

Much better!  

>> BTW, you seem to have forgotten that this would be an excellent way to deter 
>> the kind of "knock and smash" warrant service common amongst government 
>> thugs.  Any argument by the cops that "we must break down the door or else 
>> they'll erase the data!" is rendered obviously silly if the data is ALREADY 
>> encrypted and inaccessible.
>
>This requires the assumption that all the data is already encrypted, not 
>an assumption a prosecutor or private litigant is about to make.

They might not make such an "assumption," however it's an issue that must be 
addressed.  I think that search done by COS lawyers last year (can't recall 
the target; I'm sure somebody recalls it) in which they not only copied data 
but also erased it from the hard disk...including other material not 
relevant to the case... is instructive.  At least in hindsight, this was an 
improper search using improper techniques, which improperly allowed the 
defendant to damage the property searched.  Surely you agree that was in 
error, whether or not you agree that the whole search was wrong, per se.  

There is certainly a good justification to make it as difficult as possible 
for those wanting to serve a search warrant in an _abusive_ fashion.  
Pre-encrypting the data would have ensured that the COS had access to none 
of the data while appeals occurred, and would have required that they 
continue to justify the search SUBSEQUENT TO its completion in order to have 
the judge compel some sort of key.  If, arguably, the behavior at the search 
was wrong, that fact would have been citable as evidence of the abusive 
nature of their original  request.  As it is, COS was allowed to run 
roughshod over Constitutional rights, they abused a court, etc. Moreover, 
none of this was reversible, in REALITY.  You can't turn back the clock and 
undo the search or the erasure of data, etc.  

And I think my original conclusion was correct:  While most people don't 
encrypt most data NOW, in a few years just about everybody who has 
"sensitive" data will be using some sort of system to do this.  At that 
point, the reality will be that search warrants will be issued _without_  
any presumption that the evidence in any computer in the place will be 
identifiable, and thus the argument "we've gotta go in or the evidence will 
disappear!" will be obviously wrong.  

Jim Bell

jimbell@pacifier.com