Re: 5th protect password?

At 02:22 AM 4/21/96 +0000, Jonathon Blake wrote:
>	Jim:
>
>On Sat, 20 Apr 1996, jim bell wrote:
>
>> >   DOE v. United States, 487 U.S. 201; 108 S. Ct. 2341 (1988)
>
>> >   A defendant can be compelled to produce material evidence that
>> >   is incriminating.  Fingerprints, blood samples, voice
>> >   exemplars, handwriting specimens, or other items of physical
>> >   evidence may be extracted from a defendant against his will.
>> 
>> As you might expect, I see a problem (and a pattern!) with even these 
>	
>	The pattern is that you are again ignoring legal realities.

No, I am not "ignoring legal realities."  I am NOTING them, and noting that 
they form a suspicious pattern.  I do not deny that these items are 
currently  demanded regularly in certain cases; what I challenge is the 
appropriateness of that demand by historical and Constitutional standards.  


>> examples.  Notice that with the possible exception of "handwriting 
>> specimens", the examples above all represent pieces of evidence whose 
>
>	Handwriting as a tool used by most people, dates back to
>	Eighteenth Century.  Before that, it was a trade practiced
>	by scribes, and priests. In Europe, outside of the Clergy,
>	illiteracy was the standard, till the begining of the Industrial
>	Revolution.   <<   Remember that John Dee had an incredibly large
>	library of 200 volumes.  >> 

Yikes! You REALLY need to learn to read!  I wasn't referring to handwriting 
itself , or for that matter to graphology ( the study of handwriting; which 
goes back perhaps 2000 years) but in fact the _forensic_ use of graphology.  
The point is that the demanding of handwriting samples is a fairly new 
concept, at least compared with the writing of the Constitution and the 5th 
amendment.  I'm sure a REAL LAWYER (TM) reading this note will cite the 
first known example of a handwriting example being demanded by a court.  
What do you want to bet that it first occurred in this century?

>
>> or so, etc.  I think even graphology (handwriting analysis) for legal 
>> purposes is likewise comparatively recent, although there is no obvious 
>> technological reason which this should have been so.  The last category, 
>
>	Courts have yet to rule that an individual can be forced
>	to provide a sample of their handwriting, if the purpose
>	of obtaining such a script is for a graphological profile.

Which simply means that they have to have more justification than a 
shotgun-approach inquiry.

>	More to the point, courts -- or at least US Courts -- don't
>	accept graphological profiles, as proof of anything.  

If that were the case, there there would be no justification for demanding a 
handwriting sample.  Nevertheless, it is apparently done.   And while a 
handwriting sample, ALONE, may not be "proof" of something, like most 
evidence it is used in conjunction with other evidence to support a conclusion.

In any case, the initial reference to handwriting samples came from the 
Supreme Court, as quoted above, not me.  Pay more attention.  I was using 
the commentary of the SC to show that most if not all of the kinds of 
evidence demanded of defendants were NOT demande until well over a century 
after the 5th amendment was written.


>
>	I suspect you confusing graphology with questioned document
>	examination. 

No, that's a larger issue. Graphology is a tool which can be used, but there 
are plenty of other technologies which are also useful on questioned 
documents.  Paper analysis, ink analysis, electron microscopy, text 
analysis, to name just a few.  That wasn't the point, however.

>       Courts have ruled that a person may be forced
>	to provide a sample of writing, for use in questioned document
>	examination, without violating the fifth amendment. << You ought
>	to read the case law, to see why providing such a sample is
>	not a fifth amendment violation ---- it might help you be a 
>	better armchair lawyer, who spends to much time watching
>	Perry Mason reruns.  >> 

Question:  Let's suppose, for the purposes of argument, the policy was 
diametrically opposite, and no such samples were taken, ostensibly because 
that would be in violation of the 5th amendment.   Please explain the 
arguments you would use to convince everybody that this opinion was in 
error.  Remember, you couldn't cite precedent, because all the precedent 
would come to the opposite conclusion.  You would have to explain to people 
why the precedents were all wrong.

See the problem?  Lawyers are full of "appeal to authority" arguments, which 
is what a precedent really is.  But precedents can be wrong, are wrong, and 
are occasionally changed.  I pointed out (correctly, I think) that since 
well over 100+ years after the writing of the 5th amendment, there has been a 
pattern of allowing prosecutors to demand evidence of a defendant whenever 
that evidence is considered useful to incriminate that defendant.  I pointed 
out that all of the examples listed in the quotation above represented types 
of evidence that would not have been collected in 1783, or for that matter 
1883, or even a few decades after this.  As such, there is a reasonable 
doubt that the people who wrote the constitution actually intended to allow 
this sort of thing. 

After all, the fact that a given technique is, arguably, useful cannot be 
automatically used to justify its "reasonableness."  After all, confessions 
can be useful to the cops, but that does not automatically grant the cops 
the right to beat confessions out of their prisoners, does it?  Clearly not. 
 And remember, there were a number of examples listed, so I think there is a 
suspicious pattern.  Your response does not address this issue. 


>> Anyone who denies this should be required to make a list of the kinds of 
>
>	Questined Document Examination, which you alluded to, was
>	first accepted by courts in the United States, at the turn 
>	of the century.  And it was only after World War One, that 
>	it was accepted in all courts in the US.  

I don't think that challeges anything I've already said.  And you cut off 
the part where I challenged people to show the kinds of evidence regularly 
demanded of a defendant in 1783, which was about when the 5th amendment was 
written.


>        jonathon
>        grafolog@netcom.com
>
>        Owner:     Graphology-L@Bolis-com 

Aha!  Yet another person who benefits from current government policy! 

Jim Bell
jimbell@pacifier.com

Jim:

On Sat, 20 Apr 1996, jim bell wrote:

> >	illiteracy was the standard, till the begining of the Industrial
> >	Revolution.   <<   Remember that John Dee had an incredibly large
> >	library of 200 volumes.  >> 
> 
> Yikes! You REALLY need to learn to read!  I wasn't referring to handwriting 

	& you totally missed my point that when literacy was a rare thing,
	there was no presumption that any individual could either read, or
	write.   The rest of the things listed required no presumption
	about anything related to an individual.  

> itself , or for that matter to graphology ( the study of handwriting; which 
> goes back perhaps 2000 years) but in fact the _forensic_ use of graphology.  

	The first book about graphology was written in 1622 by
	C Baldi.  The first book on questioned document examination
	was written in the 1860s.   

	The first forensic use of graphology may have occurred as early 
	as 1960.  In 1975, a Juvenile Court Judge in Boulder CO used
	graphology forensically to determine the most appropriate method
	of handling some of the cases that appeared in _his_ court.

	Most courts in the United States regard the forensic use of
	graphology as dubious, at best.   A few have ruled against 
	it. 

> The point is that the demanding of handwriting samples is a fairly new 
> What do you want to bet that it first occurred in this century?

	For questioned document examination?   Sometime during the
	sixties.  
	For graphological examination?  Hasn't occurred yet.  

> If that were the case, there there would be no justification for demanding a 
> handwriting sample.  Nevertheless, it is apparently done.   And while a 

	Can you provide a citation where a court has demanded a handwriting
	sample for graphological purposes?   

	They can, and do require handwriting samples for questioned
	document examination.   

> In any case, the initial reference to handwriting samples came from the 
> Supreme Court, as quoted above, not me.  Pay more attention.  I was using 

	A ruling that had no relationship to graphology ---- which is a 
	subject that you brought up.

> >	I suspect you confusing graphology with questioned document
> >	examination. 
> No, that's a larger issue. Graphology is a tool which can be used, but there 

	I was wondering how you were going to try to wriggle out of 
	this one.  

> Question:  Let's suppose, for the purposes of argument, the policy was 
> diametrically opposite, and no such samples were taken, ostensibly because 

	The gist of the argument is that handwriting samples are public,
	and that things are written for public consumption, not private 
	consumption.  

> would come to the opposite conclusion.  You would have to explain to people 
> why the precedents were all wrong.


	You are taking a completely hypothetical situation that never had
	a basis in what could have happened.

	An individual who had seen another individual's handwriting _once_
	could deem themselves to be an expert, for that particular person's
	writing.  As such, an illiterate stable boy, who had seen his 
	master writing something twenty years prior, was deemed 
	more knowledgable
	about his master's script, than a QDE who had exemplars and
	the suspect document, and could demonstrate the authenticity or
	lack thereof, from the script.  

	After several cases where the QDE's opinion was deemed incorrect,
	and later it was discovered that the QDE's opinion was correct,
	the rules of the acceptability of an expert witness became somewhat
	stricter.  

	As the rules regarding who could be an expert witness became
	stricter, the requirements for obtaining authentic samples
	of writing became more urgent.   Subpoenaing documents from
	numerous bodies << corporations and individuals >> became a 
	standard way of obtaining exemplars.  Such exemplars were/
	are not always satisfactory, because they may be signatures
	only -- in the case of checks, or be written under non-ordinary
	conditions --- such as filed tax forms, or other reasons.

	By requesting an individual provide an authentic sample, 
	the ease with which a document can be demonstrated to be
	authentic, or not, is considerbly increased.  And the 
	likelyhood of error creeping in, is decreased dramatically.

	Now if you'd rather have an illiterate stabhle boy, that saw
	you write something 20 years ago be considered an expert as
	regards what your handwriting looks like...

> demanded of a defendant in 1783, which was about when the 5th amendment was 
> written.

	What they said.
	Where they said it. 
	What they had in their possession.
	Where they had said items in their possession.

	Note in passing that rules for admitting something into 
	evidence was a lot looser then, than it is now. 

> >        Owner:     Graphology-L@Bolis-com 
> Aha!  Yet another person who benefits from current government policy! 

	I do?   That's news to me, and the rest of graphological profession
	that we benefit from current government policy --- especially in
	light of rulings that imply that graphology can not be used for 
	employment screening, selection or profilling.   

        xan

        jonathon
        grafolog@netcom.com

        Owner:     Graphology-L@Bolis-com 


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[Obnoxiously long cc: list trimmed.]

On Sat, 20 Apr 1996, jim bell wrote:

> amendment.  I'm sure a REAL LAWYER (TM) reading this note will cite the 
> first known example of a handwriting example being demanded by a court.  
> What do you want to bet that it first occurred in this century?

I have US$ 50,000 that says it didn't.  Care to take me up on it?

> 
> Jim Bell
> jimbell@pacifier.com
> 

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information
Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
                          SANDY SANDFORT
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C'punks,

> On Sat, 20 Apr 1996, jim bell wrote:
> 
> > amendment.  I'm sure a REAL LAWYER (TM) reading this note will cite the 
> > first known example of a handwriting example being demanded by a court.  
> > What do you want to bet that it first occurred in this century?

To which Black Unicorn responded: 

> I have US$ 50,000 that says it didn't.  Care to take me up on it?

Though I think the wager offered way out of line, I wish that 
this mechanism for handling disputes were used more often on the
Cypherpunk list.  It's easy for folks to shoot their mouths off 
when they can do so at virtually zero cost.  The results are 
endless flame wars with only rare resolution.  When money is at 
stake, there is an incentive to be more temperant in ones claims.

I would be interested to see if Jim Bell and Black Unicorn could
engage in a "friendly" wager on the question in point for the
nominal sum of, say, US$100.  Perhaps they can cooperate to frame
their dispute in unambiguous terms, mutually agree upon an escrow
agent and pick a referee or other resolution mechanism to decide 
their "case."  Wouldn't that be something?

By the way, gentlemen, I'm not kidding.  Everyone on this list
could use a respite from all the "yes-it-is-no-it's-not" posts
among various combatants engaged in "how-many-angels..." spats.


 S a n d y

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

On Sun, 21 Apr 1996, Sandy Sandfort wrote:

[...]

> To which Black Unicorn responded: 
> 
> > I have US$ 50,000 that says it didn't.  Care to take me up on it?

[...]

> I would be interested to see if Jim Bell and Black Unicorn could
> engage in a "friendly" wager on the question in point for the
> nominal sum of, say, US$100.  Perhaps they can cooperate to frame
> their dispute in unambiguous terms, mutually agree upon an escrow
> agent and pick a referee or other resolution mechanism to decide 
> their "case."  Wouldn't that be something?
> 
> By the way, gentlemen, I'm not kidding.  Everyone on this list
> could use a respite from all the "yes-it-is-no-it's-not" posts
> among various combatants engaged in "how-many-angels..." spats.

Prediction:  During the terms negotiation phase much backpeddling by Mr. 
Bell will be seen.  This will include a narrowing of the geographical 
scope of the wager, a revival of the debate as to when a new century 
actually begins (00:00:01 Jan 1, 1900 or 00:00:01 Jan 1, 1901), endless 
hand wringing about what exactly an "exemplar" is, and whether he has to 
pay US$ 50,000 on losing, or the amount representing its depreciation 
from the time I made the wager.  (US$ $49,999.997?)

The reality is that Mr. Bell, more often than most people, is speaking 
before thinking.  He pulled his claim right out of the air, which is 
generally the substance of the support for his works.  He does not 
bother to research, (except to cite the constitution) or ground any of 
his discussion in anything like reality.  He backs his claims instead 
with posture and bluff ("How much do you want to bet that...")  This is 
smoke he hopes will solidify into substance for those too lazy to check 
up on him.  (It is worth noting that Mr. Bell has gotten into disputes 
with 4 people (by my limited count) who actually seem to have a clue 
about the subjects they discuss.  Every one of these has been in the 
context of a correction to Mr. Bell's facts or assumptions.  The irony is 
that occasionally he has some good points, which are simply decimated by 
the Yadda Yadda Yadda portions of his work.

All this said, I find Mr. May's and Mr. Sandfort's criticism stinging.  Mr. 
Bell, and my response to him, manages to sap a great deal of time and effort 
from myself and others for no gain aside draining his (and to some extent my) reputation 
capital.  These disputes serve little purpose otherwise.  It's clear to 
me, if not everyone else, that Mr. Bell simply fabricates his positions, 
evidence, and persuasion out of the mist.

I will waste no more time on him unless he makes the most offensive 
errors in legal fact.

He is still quite welcome to stand by the original statement that 
promoted my wager.  I still await an apology for being compared with the 
Nazi oven workers.

With my apologies to the list for not restraining myself sooner -

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information
Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com

It's an interesting vindication of the nym reputation model that no one
has questioned the meaning of Black Unicorn offering to bet $50,000, even
though (to the best of my knowlege) this is only backed by his writings,
not any sort of ecash account or reference to a True Name.

I noticed this in my reaction to seeing the $50,000 figure, and wondering
first about financial resources, and only then about the fact that there
really isn't any way to force payment by a nym.  Black Unicorn's writings
are convincing evidence that he'd pay a gambling debt.  (Not that I think
he'd lose this bet, but that's a separate issue.)

The other thing I noticed is that reputation capital isn't a simple economic
quantity:

Black Unicorn wrote: 
[snip]
> All this said, I find Mr. May's and Mr. Sandfort's criticism stinging.  Mr. 
> Bell, and my response to him, manages to sap a great deal of time and effort 
> from myself and others for no gain aside draining his (and to some extent my) reputation 
> capital.  These disputes serve little purpose otherwise.  It's clear to 
> me, if not everyone else, that Mr. Bell simply fabricates his positions, 
> evidence, and persuasion out of the mist.

I have to disagree about the effect on Black Unicorn's reputation capital.
My opinion of his legal skills and probable economic behavior are not
diminished by his argument with Jim Bell.  I have decided that he is more
likely to rant than I had previously thought, though.

The underlying model for reputation capital seems to be economics, but some
amount of psychology or economic anthropology is probably more appropriate.
We develop mental models of the behavior of others based on their actions.
Often more detail is required than the monetary amount required to make
someone untrustworthy.

The relevant question seems to be "Is this worth reading", judged on the
basis of prior writing.  My answer of "Yes, but if it's about Jim Bell,
then only maybe" can't be modeled as a single number.

Jon Leonard