From: ddfr@best.com (david friedman)
Date: Tue, 9 Apr 1996 17:06:42 +0800
To: jim bell <cypherpunks@toad.com
Subject: Re: "Contempt" charges likely to increase
Message-ID: <v02130506ad8f34b49dc3@[129.210.77.17]>
MIME-Version: 1.0
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>It is exactly this attitude that we need to change.  I presume you saw my
>comment from a day ago, when I pointed out that before 1968, local phonecos
>were doing wiretaps without any sort of court order, ...

>I'm still waiting for somebody to show that the majority of crimes that are
>investigated using subpoena power are "malum in se" crimes, as opposed to
>"malum prohibitum" ones.
>
>Jim Bell

Have you read _The Hacker Crackdown_? I think it is pretty clear that part
of what was going on there involved law enforcement people deliberately
punishing BBS operators for behavior that was wicked but not
illegal--basically facilitating communications involved in committing
crimes (credit card number theft and the like). The punishment consisted of
seizing the computer and backups and holding it for a year or so as
"evidence"--without ever filing charges.

Conceivably the owner could have taken legal action--but doing so would
give the law enforcement people an incentive to file charges, thus imposing
large costs on the owner even if he was innocent of any crime and could
eventually prove it.

I suspect that a good deal of this goes on in most law enforcement systems,
in one form or another. Charging and convicting people is costly, even if
they are guilty--and there is often behavior that law enforcement people
want to prevent that is not even illegal. On the other hand, there are lots
of things police can do that impose sizable costs but do not require a
conviction, such as arresting you, holding you in a cell overnight, but
never actually trying you for anything.

David Friedman

David Friedman
School of Law
Santa Clara University