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Zimmermann on the shut-down and elimination of Silent Circle email: "It’s not obstruction of justice if you do it before justice comes calling." I'm sure he an

• lisper 13y ago
  > It'd probably be a pretty far reach That doesn't make much of a difference. The prosecutor only has to make the charge remotely plausible in order to coerce a guilty plea to a lesser charge. (This is what they did to Aaron Swartz.) With a 20-year maximum sentence, anticipatory obstruction is a mighty powerful lever.
• j_baker 13y ago
  Far reaches are what the White House and DOJ lawyers excel at. Particularly during the Bush era.
• greenyoda 13y ago
  From the URL that ibejoeb posted above (italics are mine): Unceremoniously titled “Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy,” and part of § 802 of the Sarbanes-Oxley Act of 2002, § 1519 provides: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
  • ibejoeb 13y ago
    That's absolutely the best part, and that's why Zimmermann's comment almost seems naive. "...before justice comes calling" is exactly what they're talking about here. What is contemplation, and when does it begin? I learned from Hanni Fakhoury of EFF that a proposed defense in this kind of action is to have had in place a strict data retention policy. For example, prior to beginning operations, the policy would state something like "we will retain all data aged 6 weeks or less; older data will be destroyed." Now, you adhere to that policy, perhaps with some activity record around the procedure itself, and your argument is something like, "it is not obstruction and not anticipatory obstruction because we defined and abided by the policy before anything happened, before any event warranting an investigation could occur, and, therefor, before contemplation of an investigation could occur."
    • Amadou 13y ago
      I could swear I read an article a couple of years ago about a wall street bank losing an obstruction charge specifically because of an email retention policy just like you described. Bigger picture, we all know that the reason companies implement email retention policies is to minimize the risk of the discovery process in any potential lawsuit - practically the cost of storage is nil so any savings there is a drop in the bucket. The policies are huge productivity killers for all employees -- everyone I know who has worked under such conditions has had at least one case where they needed information from an expired email that they had not personally archived. The only reason for a company to shoot itself in the foot with a policy like that is because it is easy to imagine a one-shot potential million dollar liability loss compared to the essentially unmeasurable productivity loss spread across the entire company on a daily basis.