From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 2 Oct 1996 19:54:04 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: "Confessing to a felony"
In-Reply-To: <v03007801ae7237ed7a65@[207.167.93.63]>
Message-ID: <Pine.SUN.3.94.961002045232.5810C-100000@polaris>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 27 Sep 1996, Timothy C. May wrote:

> At 5:43 PM -0400 9/27/96, Black Unicorn wrote:
> >On Thu, 26 Sep 1996, Timothy C. May wrote:
> 
> >His admission that he used the notebook.  Recovering the notebook and
> >finding the software.  Interviewing the Customs agent working at the time.
> 
> His admission that he used _which_ notebook? Chain of evidence again.
> 
> Finding _which_ software?
> 
> (As for the Customs agent, I can assure you that my luggage has never been
> checked upon either leaving the U.S. or entering the U.S. Even if U.S.
> Customs could figure out who was working at the time I putatively entered
> the country, and even if he remembered _me_, months later, just what
> records would he have, and how would they stand up in court?)

His testomony, which the prosecution would have reviewed with him (in so
far as it does not break the ethical line of reviewing and constructing of
course).

In the American system I think that many people who have not had experiece
watching juries and the lunacy that surrounds the process fall victim to
an effect the likes of which you described on the list some time ago.
"Best as the enemy of good."  I think is the way you phrased it.  Juries
are very good at pointing fingers at merely "decent" evidence.  Arguments
of the sort that are made here, while logically sound, and convincing to
me personally, will simply not be as effective in court.

I invite all the members of the list to go sit in on a trial at some time
or another and pay attention to evidence and how it really impacts juries.

> Hearing me say I "exported crypto," a hearsay claim,

Falling within at least two of the entrenched exceptions to hearsay
exclusion....

> and happening to find
> one or more laptops at my home, weeks or months later, implies nothing.

It implied a great deal.  It proves nothing.  Unfortunately you really
don't have to prove anything.  Reasonable inferences are enough.  I'm not
telling you how I think it should be, but rather how, in my experience, it
tends to work out in practice.  Add it to the video tape of the customs
area (with our poor defendant on camera turning on the laptop for security
to show them its not a bomb or something) and things get more and more
interesting.

It's all a matter of how much effort you want to put it to it.

If everyone is convinced that export controls will never be enforced, why
all the efforts to comply with ITAR on ftp sites and so forth?  Certainly
those are a lot more in the grey area than actually transporting the data
physically...?

> (To
> make the point graphically, suppose the raiding party finds _several_
> laptops or notebooks...do they assume _all_ were taken out of the country,
> or do they pick the one with the most incriminating software on it? Answer:
> Unless they can _prove_ one of them was used, and that it had not been
> _changed_ since the putative event (highly unlikely), they cannot simply
> _assume_ one of them was taken out.

Actually, given that in this case the defendant would have explicitly
claimed to have taken the software out on a laptop, all that would really
be needed to lend a bit of material to verify would be testimony by anyone
that he had a laptop of his own on the trip.

See the Klaus von Bulow bag for an example of how ownership and possession
and multiple items which all look alike don't really care 

> (Seems to me to be an open and shut case. "Oh, _that_ laptop? That's not
> the one I took to Europe."   "Oh, you say this laptop has PGP 5.9 on it?
> So? I installed it last week. My trip to Europe was last summer.")

"PGP isn't on here?  You destroyed evidence!"
Works both ways.  It doesn't help that he admitted to the crime to his
buddies on the evil conspiracy mailing list either.

> >Considering the headaches required for airline travel today, it's not like
> >there aren't serious records abound.
> 
> Such as? I recall no inspections of my luggage, no inventorying of the
> serial numbers of my laptops, no inspection whatsoever of my
> magneto-optical drives (which were in my carry-on luggage, and not even
> glanced at, in the box they were in).

I challenge you to find an airport today that will not hand inspect
laptops in checked bagage and either x-ray or hand inspect or both laptops
carried on.  I also challenge you to find an airport that does not keep
video tape records of their security areas.  If you do make sure to call
the FAA and report them as well.  I understand there is a reward for lax
security reports now.

> X-rays would not prove what was taken
> in or out of the country, even if "x-ray escrow" were implemented (which it
> is not, according to all reports I have heard, and based on some practical
> limits on storage), I doubt the records of a trip, say, last summer (of
> '95) could be retrieved and prove that a particular laptop was taken out.
> Not to mention that the software allegedly taken out might have been on any
> kind of media, none of them distinguishable with an x-ray machine.

All these speculations are idle where the defendant admitted to the means
he used to commit the crime.  Reasonable verification is all that is
required, and in some circumstances, not even that.

I'm not telling you he'd go away.  I am telling you that if I wanted to
prosecute the case, I'd make a very good run of it and without someone on
their toes, probably talk defendant into a plea deal.

> 
> >For crying outloud, he admitted to the world that he took the software
> >out.  I put that in front of a jury and it looks just like the typical
> 
> "For crying out loud" is bluster, not legal argument.

With respect, Mr. May, nothing you have presented is legal argument
either.

> >stupid bragging criminal.  Any defense about "I was just kidding" or "The
> >message was forged" might be interesting, but it will sound like
> >technical-mumbo-jumbo to a jury.  Yes, it would convince >ME< that was a
> 
> Legal proof is still needed.

Thats a reading of the law, not the dogma of a courtroom.

> Given only a nebulous statement like "I
> exported crypto in violation of the ITARs," or "I shipped PGP to Europe,"
> is not enough for a case even to be brought to trial.

In print, distributed to nearly 1500 people, I simply cannot agree.

> (If it reached trial, I would expect a defense attorney to move for
> dismissal. Absent any evidence that a crime occurred, absent any proof
> beyond the nebulous hearsay statement of a "braggart," there is simply no
> basis for criminal action.)

Disagree strongly.  I have seen jail terms for less.  Particularly where a
prosecutorial political motive was being served.

> "Stupid bragging criminals" may be common, but bragging is not in and of
> itself illegal. There still has to be evidence of a crime.

Merely enough to allow a jury to make a reasonable judgement to the
reliability of the confession.

> "Produce the body."
> 
> (I can say I personally whacked Jimmy Hoffa. Absent other evidence, or the
> body, or witnesses, does this mean I'll be found guilty? To use BU's
> phrasing, "for crying out loud.")

Comparing export regulations to murder investigation undercuts your
argument rather seriously.  I really suggest you spend some time in the
pragmatic world of the courtroom and watch exactly how the letter of the
law is put into practice.

> --Tim May
> 
> We got computers, we're tapping phone lines, I know that that ain't allowed.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
> tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
> "National borders aren't even speed bumps on the information superhighway."
> 
> 
> 
> 
> 

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li