8 February 2002: Add two messages on Mitnick enryption and CIA Molotov cocktail.
7 February 2002
These respond to affidavits and warrants in RaiseTheFist/Sherman Austin investigation and arrest:
http://cryptome.org/usa-v-rtf-swa.htm
Thanks to SB, 5 February 2002:
You ask at cryptome.org/usa-v-rtf-swa.htm whether there is any precedent for seizing permanently encrypted information just because it is encrypted. If I recall correctly, during the Kevin Mitnick trial, the defense requested from the prosecution some encrypted files, which request was refused, on the ground that said files might contain damaging stuff. The judge agreed with the prosecution, in what was said to be at the time the first instance of this. Since there was no appeal, there was no definite word on whether the judge was correct.
Thanks to M, 5 February 2002:
Subject: encrypted evidence
> Cryptome would appreciate information on the legal basis for retaining
> seized data merely because it is encrypted and there is no proof that
> it fits any of these five characteristics.
I'm not sure what the basis is, but there is precedent. Kevin Mitnick's judge likened the situation to handing the defendant a paper bag that may or may not contain a gun or drugs, and not only did she allow the government to keep the encrypted files, but she refused to give the defense any access to them unless Kevin told the government the password first (assuming he even had it).
I've heard of other cases in which the feds only briefly seized harddrives, copied them, and then returned them. Is the FBI really asserting that removing the drives would have jeopardized the ability to preserve the data?
The legal argument over Mitnick's encrypted files is detailed in:
New York Times: "Wrinkle in Mitnick Case Hints at Encryption Battles to Come"
By Carl S. Kaplan
http://www.skeptictank.org/gen2/gen00104.htm
Thanks to TJ, 6 February 2002:
Here is some info you might (or might not) want:
18. U.S.C. § 842(p) was added by an Act Aug. 17, 1999:(p) Distribution of information relating to explosives, destructive devices, and weapons of mass destruction.
(1) Definitions. In this subsection--
(A) the term "destructive device" has the same meaning as in section 921(a)(4);
(B) the term "explosive" has the same meaning as in section 844(j); and
(C) the term "weapon of mass destruction" has the same meaning as in section 2332a(c)(2).
(2) Prohibition. It shall be unlawful for any person--
(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or
(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.
I searched on Lexis for any caselaw on this subsection -- 842(p) -- and I could not find anything, so it looks like the constitutionality of this statute has not been contested yet, which is the first thing a person convicted (or who pled guilty to) this charge would do upon appellate review.
The 4th Circuit had this to say about the "Hit Man" book in a civil case. A court would likely use the same reasoning in evaluating the criminal statute. Rice v. Paladin Enters., 128 F.3d 233 (4th Cir. 1997)
Paladin Press [publishers of the book "Hit Man" being sued for civil damages]in this case has stipulated that it specifically targeted the market of murderers, would-be murderers, and other criminals for sale of its murder manual. Paladin has stipulated both that it had knowledge and that it intended that Hit Man [*267] would immediately be used by criminals and would-be criminals in the solicitation, planning, and commission of murder and murder for hire. And Paladin has stipulated that, through publishing and selling Hit Man, it "assisted" Perry in particular in the perpetration of the brutal triple murders for which plaintiffs now seek to hold the publisher liable. Beyond these startling stipulations, it is alleged, and the record would support, that Paladin assisted Perry through the quintessential speech act of providing Perry with detailed factual instructions on how to prepare for, commit, [**110] and cover up his murders, instructions which themselves embody not so much as a hint of the theoretical advocacy of principles divorced from action that is the hallmark of protected speech. And it is alleged, and a jury could find, that Paladin's assistance assumed the form of speech with little, if any, purpose beyond the unlawful one of facilitating murder.Paladin's astonishing stipulations, coupled with the extraordinary comprehensiveness, detail, and clarity of Hit Man's instructions for criminal activity and murder in particular, the boldness of its palpable exhortation to murder, the alarming power and effectiveness of its peculiar form of instruction, the notable absence from its text of the kind of ideas for the protection of which the First Amendment exists, and the book's evident lack of any even arguably legitimate purpose beyond the promotion and teaching of murder, render this case unique in the law. In at least these circumstances, we are confident that the First Amendment does not erect the absolute bar to the imposition of civil liability for which Paladin Press and amici contend. Indeed, to hold that the First Amendment forbids liability in such circumstances [**111] as a matter of law would fly in the face of all precedent of which we are aware, not only from the courts of appeals but from the Supreme Court of the United States itself. Hit Man is, we are convinced, the speech that even Justice Douglas, with his unrivaled devotion to the First Amendment, counseled without any equivocation "should be beyond the pale" under a Constitution that reserves to the people the ultimate and necessary authority to adjudge some conduct -- and even some speech -- fundamentally incompatible with the liberties they have secured unto themselves.
And a Molotov cocktail is a destructive device:
United States v. Simmons, 83 F.3d 686 (4th Cir. 1996)"The sole question before the court in this case is whether a Molotov cocktail, comprising a glass bottle filled with gasoline and a cloth fuse, is a "destructive device" as that term is defined in 26 U.S.C. § 5845(f)(1), if the defendant does not physically possess a match or lighter with which to light the device. Concluding that it is, we affirm the defendant's conviction."
Regarding Molotov cocktail assembly instructions.
See http://www.fsln-nicaragua.com/contra/manual/index.htm for a manual purported to be authored by the CIA for distribution by the contras.
It specifically shows a Molotov cocktail with instructions on how to make it along with an illustration of it being thrown at a police station (pagina 14).
Maybe just using the US government's terrorism instructions is still legal?
Date: Wed, 6 Feb 2002 22:34:28 -0700
From: Paul Gowder <paultopia@YAHOO.COM>
Subject: Re: raise the fist
To: CYBERIA-L@LISTSERV.AOL.COM
Aimee said (in various messages):
>I didn't see the website... did it contain any sequencing information
for
>sabotage, or suggest targets? Or, was it just typical disaffected "blow
'em
>up" ya-ya?
Typical disaffected blow 'em up. With recipes. Sort of kind of suggested targets (I believe he suggested police cars at one point) but not really with any specificity. Look, the guy was obviously a moron. But not in any constitutionally unprotected fashion, and the FBI arrested him for his politics, politics that are shared by many non-morons.
> > (I might add that the Black Bloc is indeed a tactic, not an
organization,
> > and one based in safety from random police snatch-squads and
fearmongering
> > singling out, not in violence. 99.99 percent of the people
who use that
> > tactic are completely nonviolent, even if, on average, more militant
than
> > the rest of the movement.)
>
>Looks like a modern Roman Legion tortoise formation. (Do they use shields?
I
>have no idea.)
They do indeed use shields. In fact, in NY, reports are (I wasn't at this particular section of the long, long, march) that the cops attacked anyone they saw with a shield.
Date: Thu, 7 Feb 2002 11:49:26 -0600
From: Aimee Farr <aimee.farr@POBOX.COM>
Subject: Re: raise the fist
To: CYBERIA-L@LISTSERV.AOL.COM
Gowder wrote:
> censored. Especially by the forcible taking down of a website,
which, in
> my mind, is equivalent to prior restraint in that it prevents future
> listeners from hearing the speech. (about as close to prior restraint
as
> taking up published copies of a book and burning them. Not totally
prior,
> but pretty prior.)
Well, I don't know about the motivations, but for argument's sake, let's assume you're correct.
Interfering with "a broadcast strategy" can be a bad idea if it is in support of a political cause, propaganda, perception management, etc. The Germans learned this in WW II. Telling people not to listen to Allied broadcasts only heightened interest and made people listen. Here, you make people "look," but it's the same principle. In WW II, efforts to stop underground newspapers only served to feed their circulation. Some countries finally "got tough," and said if you were caught with such propaganda -- death. It caused circulation to rise to never-before-seen heights, created spin-off publications, and increased the mediums of communication. In an open society, prior restraint can be a bad tactic, and so can attrition strategies.
Our law enforcement agencies, to a large extent, lack discretion and education as to these matters. They are tactical. (Perhaps one reason why the CIA tried to get involved in the 70s is because they had underground experience, and questioned domestic strategy.) Due to the circulation among intelligence bodies, these sort of knowledge deficits are being addressed. However, there are very few people still around with experience, and a strategic sense for these issues. We made horrific mistakes in the Anti-war era, escalating the conflict, and costing lives. We cannot afford to make those same mistakes today.
Much of guerrilla-activist (stemming from *real* guerrillas) psychology is based on provocation tactics. That's why Mao said being attacked was a good thing -- it's viewed as a victory. Some adversaries seek justification for counter-strikes, solidarity, fuel for extremism, etc.
Certainly, it is no victory to empower your enemy.