Conspiracy to hide bits (was: traffic analysis)

[Jim McCoy]

On Wednesday, August 27, 2003, at 04:09 PM, An Metet wrote:
>
> This is from http://www.lawnerds.com/testyourself/criminal_rules.html:
>

Check out a better source (specifically 18 U.S.C. 371), or 
http://www.rense.com/general9/cons.htm.

> A person is guilty of conspiracy if:
>    - Two or more people agree to commit a crime, and
>    - the people intended to enter into the agreement, and
>    - at least one of the conspirators commits some overt act (such as 
> some
>      act of preparation) that furthers the conspiracy.

- a person may become a member of a conspiracy without knowing the 
details of the unlawful scheme or the names or identities of the other 
alleged conspirators, if you have an understanding of the unlawful 
nature of a plan (e.g. let's get together with lots of other people to 
make it harder for the RIAA to track p2p music sharing and thwart the 
DMCA) and willfully joins that plan on on occasion (e.g. fire up your 
Kazaa++ client) then that is sufficient to convict him for conspiracy, 
even though he had not participated before or only played a minor part 
(e.g. only passed bits from point A to point B on behalf of another 
user, but did not actually download anything.)

Chain-conspiracy is another angle that I have not thought out too much 
here, but it might be applied.  I am not sure how much prior knowledge 
of the actual act is required and how much willful blindness can be .  
This whole area is less black and white than most people think, and all 
it takes is a clever prosecutor and willing judge to make a small leap 
in the name of "keeping the law current with technology" for 
interesting things to start happening.

> I don't see how using an anonymity service, or any internet service
> whose activities are not forbidden by law, could fall into this 
> category.
> You would fail to achieve the first element of the crime, the agreement
> to commit a crime.

To be charged with conspiracy you do not need to be a party to the 
agreement, only a participant in the criminal event. Willful blindness 
on the part of a conspirator is also not a defense, although you would 
need to know that there is a high probability of illegal activity 
occurring for willful blindness to apply. Participating in an anonymity 
network that has an application-specific nature (I am thinking more of 
the lame anonymity ploys being talked about by people fearing the RIAA 
right now than something generic like a http proxy crowd) might not be 
enough to convict you, but it might be sufficient for an indictment.  
You may be able to beat the rap, but can you beat the ride?

I am not sure if a strong case could be made at this time that 
participating in such networks is membership in a conspiracy, but I can 
see it happening soon.  If this happens then it might shift the burden 
of proof on to the participants in the network to prevent illegal 
activity or to provide for law enforcement access when requested.  
Given that voice over IP networks are getting tapped on the shoulder by 
law enforcement agencies reminding them that as a "communications 
service" they are required to provide tap and trace functions, how long 
do you think it will be before someone decides that an anonymity 
service is a communications service that must provide the same 
functionality?

Jim


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