Conspiracy to hide bits (was: traffic analysis)
mccoy at mad-scientist.com
Fri Aug 29 02:55:11 EDT 2003
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
> 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
> 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
> 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
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