Deniability

[Robert J. Hansen]

On 3/22/2011 10:29 PM, Jerome Baum wrote:
>> To repeat what I told you earlier: *there was no such trial*.
> 
> When did you tell me this?

Quoting:

        > Wasn't there that case where the fact that someone ...
        > had some OpenPGP implementation on their computer was
        > admitted into a US court and appeals didn't overturn
        > that admission?

        In all cases I'm aware of, it was alleged the individuals
        were using OpenPGP to conceal their activity in a crime.
        Covering up a criminal offense is, itself, almost always a
        criminal offense.

Written today.  I've done a fair bit of digging into this: no such case
has ever been presented in a United States court.  The case you cited
below was not a United States court: it was state court.

The phrase, "a United States court" means, "a court operating under
federal law passed by Congress."  The phrase, "a state court" means, "a
court operating under state law passed by a state legislature."

I suspect you meant, "a court somewhere in the United States," which
could mean either.

> "We find that evidence of  appellant's Internet use and the existence of
> an encryption program on his  computer was at least somewhat relevant to
> the state's case against him,"

Imagine this: I'm being accused of premeditated murder.  Apparently, I
ran over a man with a car with the specific intent of killing him.  When
the police arrest me, they discover in my apartment I have a sniper
rifle, a hangman's noose, a straight razor, some food that has ground
glass mixed into it, and a how-to manual for committing murders with all
of those tools.  (Note that generally speaking none of these are illegal
in the United States.)  The state wants to enter all of those things
into evidence to support the claim that I committed my crime with
extreme premeditation, that I had the specific and deliberate intent to
kill.

Under your theory, that should be barred.  Me, I think that's kind of
weird.  Seems to me like this is the sort of thing the jury should be
allowed to hear and decide for themselves.  Likewise, in this case the
prosecution was alleging something.  The judge believed -- and the
appellate court agreed -- that the presence of PGP was relevant to those
allegations.

If you don't know what specific fact this evidence was presented to
demonstrate, then you can't say the evidence shouldn't have been
admitted.  We know it was connected to a criminal trial, but we don't
know specifically what the evidence was introduced to prove.  It
could've been something as simple as, "the defendant is technically
sophisticated, as evidenced by...".

> The guy  was convicted,  and for the  right reasons, but  the encryption
> software shouldn't have been allowed.

I can't argue against this.  This is your emotional reaction to the
situation, and nobody can argue against emotions.  All that I can say is
that, as a matter of law, the decision makes sense and seems rational.