"Confessing to a felony"

At 2:03 AM 9/26/96, Black Unicorn wrote:
>On Wed, 25 Sep 1996, Igor Chudov @ home wrote:
>
>> > >> Soon I am going to be going overseas to Japan, and I want to take
>> > >> my notebook with me so I can keep up with everything, however, I have
>> > >> encrypted my hard drive and usually encrypt my mail.  Is this in
>> > >> violation of the ITAR to keep everything the same when I go over?
>>
>> Gentlemen, us customs does not give shit about what you take out
>> on your diskettes.
>>
>> When I went to Russia recenty, I took PGP for DOS, and no one gave
>> me any problem.
>>
>> IANAL
>
>Obviously not, you've just confessed to a felony.

So?

"Confessing to a felony" is meaningless, as I understand things. While BU
is a lawyer, and I am not, I maintain "confessing to a felony" is
meaningless without several necessary factors:

a. interest by law enforcement that a crime has been committed and needs to
be prosecuted

b. evidence that the "confession" can be backed up by other evidence

c. common sense

Thus, if even former prosecutor Brian Davis, when he was a prosecutor, were
to have "confessed to a felony" (for example, saying a bad word on a forum
where minors might be present, under the CDA, and before it was put on
semi-hold), his colleagues would just have snickered, thinking him crazy.

As to the felony status of taking PGP to Russia, I think it's not a felony.
The "personal use" exemption in the ITARs certainly makes taking PGP to
_Western_ Europe an OK thing. Whether Russia is still considered to be
worthy of an "exemption to the exemption," as it were, is unclear to me.

Mostly, I think U.S. Customs doesn't care.

--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."

On Wed, 25 Sep 1996, Timothy C. May wrote:

> At 2:03 AM 9/26/96, Black Unicorn wrote:
> >On Wed, 25 Sep 1996, Igor Chudov @ home wrote:
> >
> >> > >> Soon I am going to be going overseas to Japan, and I want to take
> >> > >> my notebook with me so I can keep up with everything, however, I have
> >> > >> encrypted my hard drive and usually encrypt my mail.  Is this in
> >> > >> violation of the ITAR to keep everything the same when I go over?
> >>
> >> Gentlemen, us customs does not give shit about what you take out
> >> on your diskettes.
> >>
> >> When I went to Russia recenty, I took PGP for DOS, and no one gave
> >> me any problem.
> >>
> >> IANAL
> >
> >Obviously not, you've just confessed to a felony.
> 
> So?
> 
> "Confessing to a felony" is meaningless, as I understand things. While BU
> is a lawyer, and I am not, I maintain "confessing to a felony" is
> meaningless without several necessary factors:

Mr. May is absolutely correct.  But let me discuss why I still think it's
dangerous.

> 
> a. interest by law enforcement that a crime has been committed and needs to
> be prosecuted

Interest by law enforcement is impossible to predict.  It can be driven by
politial winds, and by fancy as well as unlucky coincidence.  (The drug
dealer who is busted because the police respond to a fight 911 call at the
wrong address).  The law is not fair in this regard.  Prosecution is
always selective and all one needs is an administration decision (even by
some mid-level idiot at justice) and suddenly crypto export could be a
serious issue.

> 
> b. evidence that the "confession" can be backed up by other evidence
>

In the case of the export at hand, a passport record exists, and surely
the notebook exists.  Were I a prosecutor with a bug in my rectum, I would
think I had something of a case.

> c. common sense

This has never had anything to do with prosecution.  I wish it did.

> Thus, if even former prosecutor Brian Davis, when he was a prosecutor, were
> to have "confessed to a felony" (for example, saying a bad word on a forum
> where minors might be present, under the CDA, and before it was put on
> semi-hold), his colleagues would just have snickered, thinking him crazy.

There was once a day where confessing to sexual harassment or smoking 
something fishy would have caused this response.  Today it is grounds for
immediate dismissal.

> As to the felony status of taking PGP to Russia, I think it's not a felony.
> The "personal use" exemption in the ITARs certainly makes taking PGP to
> _Western_ Europe an OK thing. Whether Russia is still considered to be
> worthy of an "exemption to the exemption," as it were, is unclear to me.

Unfortunately these kind of exceptions are easily evaded when push comes
to shove.

> Mostly, I think U.S. Customs doesn't care.

If this is true, it is for two reasons.

1>  Because no one has yet told them to care.
2>  Because they find the regulation to difficult to enforce.

Start admitting that you have engaged in the conduct and those two factors
may quickly vanish.

Am I being cautious?  Of course.  Once upon a time it was ok to admit that
you left the country with tens of thousands in cash too.

> --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

At 1:37 PM -0400 9/26/96, Black Unicorn wrote:

>>
>> b. evidence that the "confession" can be backed up by other evidence
>>
>
>In the case of the export at hand, a passport record exists, and surely
>the notebook exists.  Were I a prosecutor with a bug in my rectum, I would
>think I had something of a case.

What evidence of any sort do they have that any particular notebook
computer was involved in the trip offshore? Seems to me this is a rather
major defect in the evidence chain.

--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."

On Thu, 26 Sep 1996, Timothy C. May wrote:

> At 1:37 PM -0400 9/26/96, Black Unicorn wrote:
> 
> >>
> >> b. evidence that the "confession" can be backed up by other evidence
> >>
> >
> >In the case of the export at hand, a passport record exists, and surely
> >the notebook exists.  Were I a prosecutor with a bug in my rectum, I would
> >think I had something of a case.
> 
> What evidence of any sort do they have that any particular notebook
> computer was involved in the trip offshore? Seems to me this is a rather
> major defect in the evidence chain.

His admission that he used the notebook.  Recovering the notebook and
finding the software.  Interviewing the Customs agent working at the time.

Considering the headaches required for airline travel today, it's not like
there aren't serious records abound.

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
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
reasonable doubt, but a jury is very unlikely to buy it.  Juries almost
never buy things they don't understand.  Technical talk makes them sleepy.
"Can't we go back to the hotel now?  Dey gots good eatings."

> 
> --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

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?)

Hearing me say I "exported crypto," a hearsay claim, and happening to find
one or more laptops at my home, weeks or months later, implies nothing. (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.

(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.")


>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). 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.

>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.

>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. 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.

(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.)

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

"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.")

--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."

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?)
> 
> Hearing me say I "exported crypto," a hearsay claim, and happening to find
                                      ^^^^^^^^^^^^^^^
It is an admission against interest and a confession; it is admissible 
against the speaker in a prosecution against him for "exporting crypto"
from a strictly evidentiary standpoint.

> one or more laptops at my home, weeks or months later, implies nothing. (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.

Your understanding of evidence is inaccurate.  The evidence re the 
laptop[s] would be admissible and the parties would argue about what it 
meant.  The jury is entitled to draw common sense inferences.  That might 
be easy to do in a case in which a defendant has confessed....


 
> (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.")

So now you, as your own lawyer (apparently) have decided to take the 
stand and testify.  Remember that the prosecutor gets to cross-examine 
you.  Things are about to get ugly.... 


> 
> >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). 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.

Circumstantial evidence is admissible if probative of a fact at issue in 
the case.  Evidence that you took a laptop out of the country is 
probative of the allegation that you exported crypto using a laptop.



> >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.

And your understanding of evidence shows a misunderstanding of how the 
rules of evidence actually work in a courtroom. 


> >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. 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.

You are absolutely wrong.  It may not be enough for a conviction, but it 
will beat a Rule 29 motion (Motion for a judgment of acquittal) and get 
the case to the jury.

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

Must a jury believe that you were "just bragging" because you now, in a 
criminal trial, say that you were? 


> "Produce the body."

Perry Mason is only active in re-runs.

> 
> (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.")

That's where prosecutorial discretion comes in and a judge's and jury's 
common sense comes in if the prosecutor runs amok.

BTW, I am far more willing to believe you were bragging about whacking 
Jimmy Hoffa than about exporting crypto.  Think of all the interesting 
evidence from this mailing list's archives that prosecutors would attempt 
to introduce against you ...

Not to say that *I* couldn't get you off, but not the way you propose.

EBD



> --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."
> 
> 
> 
> 
>

On Sun, 29 Sep 1996, Brian Davis wrote:

> 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?)
> > 
> > Hearing me say I "exported crypto," a hearsay claim, and happening to find
>                                       ^^^^^^^^^^^^^^^
> It is an admission against interest and a confession; it is admissible 
> against the speaker in a prosecution against him for "exporting crypto"
> from a strictly evidentiary standpoint.
> 
> > one or more laptops at my home, weeks or months later, implies nothing. (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.
> 
> Your understanding of evidence is inaccurate.  The evidence re the 
> laptop[s] would be admissible and the parties would argue about what it 
> meant.  The jury is entitled to draw common sense inferences.  That might 
> be easy to do in a case in which a defendant has confessed....
> 
> 
>  
> > (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.")
> 
> So now you, as your own lawyer (apparently) have decided to take the 
> stand and testify.  Remember that the prosecutor gets to cross-examine 
> you.  Things are about to get ugly.... 
> 
> 
> > 
> > >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). 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.
> 
> Circumstantial evidence is admissible if probative of a fact at issue in 
> the case.  Evidence that you took a laptop out of the country is 
> probative of the allegation that you exported crypto using a laptop.
> 
> 
> 
> > >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.
> 
> And your understanding of evidence shows a misunderstanding of how the 
> rules of evidence actually work in a courtroom. 
> 
> 
> > >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. 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.
> 
> You are absolutely wrong.  It may not be enough for a conviction, but it 
> will beat a Rule 29 motion (Motion for a judgment of acquittal) and get 
> the case to the jury.
> 
> > (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.)
> > 
> > "Stupid bragging criminals" may be common, but bragging is not in and of
> > itself illegal. There still has to be evidence of a crime.
> 
> Must a jury believe that you were "just bragging" because you now, in a 
> criminal trial, say that you were? 
> 
> 
> > "Produce the body."
> 
> Perry Mason is only active in re-runs.
> 
> > 
> > (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.")
> 
> That's where prosecutorial discretion comes in and a judge's and jury's 
> common sense comes in if the prosecutor runs amok.
> 
> BTW, I am far more willing to believe you were bragging about whacking 
> Jimmy Hoffa than about exporting crypto.  Think of all the interesting 
> evidence from this mailing list's archives that prosecutors would attempt 
> to introduce against you ...
> 
> Not to say that *I* couldn't get you off, but not the way you propose.
> 
> EBD
> 
> 
> 
> > --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."
> > 
> > 
> > 
> > 
> > 
> 


YEAH FUCK YOU.. YOUR ALL FUCKING STUPID ... DONT FUCKIN WRITE THIS SHIT..
YER ALL DUMB STUPID LITTLE 5 YEAR OLDS WHO KNOW JACK SHIT.. GET OFF THE
FUCKIN SUBJECT YOU LAME ASS WHOREs.. FUCKIN YOU WANT A REAL FELONY.. TRY
TO HACK MY SYSTEM... THIS SYTEM CANNOT BE HACKED IF YOU GET ROOT I GIVE
YOU PERMISSION TO NUKE MY SYS.. FUCK YOU BASTARDS... STUPID NUTSAKCS.

Sorry about this message that went out.  Looks like I got a few idiot
sending messages from a hacked account. Sorry for the waste of bandwith.  

Thanks. 
Jerry

On Sun, 29 Sep 1996, Gerard D. Cochrane Jr. wrote:

> On Sun, 29 Sep 1996, Brian Davis wrote:
> 
> > 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?)
> > > 
> > > Hearing me say I "exported crypto," a hearsay claim, and happening to find
> >                                       ^^^^^^^^^^^^^^^
> > It is an admission against interest and a confession; it is admissible 
> > against the speaker in a prosecution against him for "exporting crypto"
> > from a strictly evidentiary standpoint.
> > 
> > > one or more laptops at my home, weeks or months later, implies nothing. (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.
> > 
> > Your understanding of evidence is inaccurate.  The evidence re the 
> > laptop[s] would be admissible and the parties would argue about what it 
> > meant.  The jury is entitled to draw common sense inferences.  That might 
> > be easy to do in a case in which a defendant has confessed....
> > 
> > 
> >  
> > > (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.")
> > 
> > So now you, as your own lawyer (apparently) have decided to take the 
> > stand and testify.  Remember that the prosecutor gets to cross-examine 
> > you.  Things are about to get ugly.... 
> > 
> > 
> > > 
> > > >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). 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.
> > 
> > Circumstantial evidence is admissible if probative of a fact at issue in 
> > the case.  Evidence that you took a laptop out of the country is 
> > probative of the allegation that you exported crypto using a laptop.
> > 
> > 
> > 
> > > >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.
> > 
> > And your understanding of evidence shows a misunderstanding of how the 
> > rules of evidence actually work in a courtroom. 
> > 
> > 
> > > >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. 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.
> > 
> > You are absolutely wrong.  It may not be enough for a conviction, but it 
> > will beat a Rule 29 motion (Motion for a judgment of acquittal) and get 
> > the case to the jury.
> > 
> > > (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.)
> > > 
> > > "Stupid bragging criminals" may be common, but bragging is not in and of
> > > itself illegal. There still has to be evidence of a crime.
> > 
> > Must a jury believe that you were "just bragging" because you now, in a 
> > criminal trial, say that you were? 
> > 
> > 
> > > "Produce the body."
> > 
> > Perry Mason is only active in re-runs.
> > 
> > > 
> > > (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.")
> > 
> > That's where prosecutorial discretion comes in and a judge's and jury's 
> > common sense comes in if the prosecutor runs amok.
> > 
> > BTW, I am far more willing to believe you were bragging about whacking 
> > Jimmy Hoffa than about exporting crypto.  Think of all the interesting 
> > evidence from this mailing list's archives that prosecutors would attempt 
> > to introduce against you ...
> > 
> > Not to say that *I* couldn't get you off, but not the way you propose.
> > 
> > EBD
> > 
> > 
> > 
> > > --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."
> > > 
> > > 
> > > 
> > > 
> > > 
> > 
> 
> 
> YEAH FUCK YOU.. YOUR ALL FUCKING STUPID ... DONT FUCKIN WRITE THIS SHIT..
> YER ALL DUMB STUPID LITTLE 5 YEAR OLDS WHO KNOW JACK SHIT.. GET OFF THE
> FUCKIN SUBJECT YOU LAME ASS WHOREs.. FUCKIN YOU WANT A REAL FELONY.. TRY
> TO HACK MY SYSTEM... THIS SYTEM CANNOT BE HACKED IF YOU GET ROOT I GIVE
> YOU PERMISSION TO NUKE MY SYS.. FUCK YOU BASTARDS... STUPID NUTSAKCS.
> 
> 


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It's better to be thought a fool, then to open your mouth and
			   prove it.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
   A mind is like a parachute, it only works when it is open.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
-----------------------------------------------------------------
Gerard D. Cochrane Jr.
Software System Specialist II
Systems Programmer
University of Texas at El Paso
Phone: (915) 747-5256
Fax: (915) 747-5067
E-mail: gdcochra@mail.utep.edu

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On Sun, 29 Sep 1996, Gerard D. Cochrane Jr. wrote:

> On Sun, 29 Sep 1996, Brian Davis wrote:
> 
> > On Fri, 27 Sep 1996, Timothy C. May wrote:
<deletia>
> 
> YEAH FUCK YOU.. YOUR ALL FUCKING STUPID ... DONT FUCKIN WRITE THIS SHIT..
> YER ALL DUMB STUPID LITTLE 5 YEAR OLDS WHO KNOW JACK SHIT.. GET OFF THE
> FUCKIN SUBJECT YOU LAME ASS WHOREs.. FUCKIN YOU WANT A REAL FELONY.. TRY
> TO HACK MY SYSTEM... THIS SYTEM CANNOT BE HACKED IF YOU GET ROOT I GIVE
> YOU PERMISSION TO NUKE MY SYS.. FUCK YOU BASTARDS... STUPID NUTSAKCS.


Charming.  A juvenile refugee from alt.2600...

EBD

Black Unicorn wrote:
>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.
>
San Diego
Los Angeles
San Jose

The times that I have checked the bag holding my laptop, the laptop has never been hand checked.
(I don't usually check my laptop, for fear of getting back broken plastic.)


-- Marshall

Marshall Clow     Aladdin Systems   <mailto:mclow@mailhost2.csusm.edu>

Warning: Objects in calendar are closer than they appear.

-----BEGIN PGP SIGNED MESSAGE-----

In list.cypherpunks, Black Unicorn wrote:

>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.

MSP (Minneapolis/St. Paul) security personnel have let my work laptop
through security 3 times in the last couple of months.  In the past
year, I have carried it through Kansas City, Atlanta, Louisville,
Dallas/Ft. Worth and San Antonio without anything more than an x-ray
screening (which would only turn up a non-laptop, anyway).  On the
occasions I've seen somebody else getting the "boot scan", it's never
gone past the BIOS screen.  Airport security personnel, as a class, are
completely ignorant about computers.  I've gotten more flack for a knife
in my belt buckle. (a lot more, actually, but that's another story...)
- -- 
           Roy M. Silvernail     [ ]      roy@scytale.com
DNRC Minister Plenipotentiary of All Things Confusing, Software Division
PGP Public Key fingerprint =  31 86 EC B9 DB 76 A7 54  13 0B 6A 6B CC 09 18 B6
                Key available from pubkey@scytale.com

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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