From: James A. Donald To: cypherpunks@cpunks.org Sent: Friday, October 4, 2013 4:25 AM Subject: Re: <nettime> A CEO who resisted NSA spying is out of prison. On 2013-10-04 20:02, Adam Back wrote: ...

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A CEO who resisted NSA spying is out of prison. And he feels ‘vindicated’ by Snowden leaks. http://www.washingtonpost.com/blogs/the-switch/wp/2013/09/30/a-ceo-who-resis... By Andrea Peterson, Published: September 30 at 12:07 pmE-mail the writer Both Edward Snowden and Joseph Nacchio revealed details about some of the things that go on at NSA headquarters in Fort Meade. (REUTERS/NSA/Handout)

Both Edward Snowden and Joseph Nacchio revealed details about some of the things that go on at NSA headquarters in Fort Meade. (NSA/Reuters)

Just one major telecommunications company refused to participate in a legally dubious NSA surveillance program in 2001. A few years later, its CEO was indicted by federal prosecutors. He was convicted, served four and a half years of his sentence and was released this month.

Insider trading laws are so vague and all encompassing that it is entirely impossible to be innocent of insider trading, unless you pick your stocks by throwing darts Almost every investor is guilty of insider trading.  Prosecutions are selective and arbitrary.

This is why that a system such as my "Denial of Disservice Attack" idea could be so attractive to corporate America and its high-level (and not so high level) employees.    If it were explained to them that it is in their interest to lower the Federal prison population from 220,000 to 15,000, and that it could be done for perhaps only $20 million per year,  they should flock to contribute.  It could be arranged as a charitable contribution ('to encourage employment of the jury system',) and thus be tax-deductible.           Jim Bell

On Fri, Oct 04, 2013 at 08:46:09PM -0400, dan@geer.org wrote:

I find the constant appearance of HTML e-mail here to be surprising. HTML improves nothing and adds risk.

A good point. I deal with that by alternative_order text/plain text/html text/enrichened auto_view text/html which calls links via /etc/mailcap text/plain; less '%s'; needsterminal text/html; /usr/bin/sensible-browser '%s'; description=HTML Text; nametemplate=%s.html ... How exploitable is /usr/bin/links?

Why not have the mailing list censored down to ASCII? Opponents are listening to be sure, but why give them injection points? Or does the libertarian ideal extend to dangerous encodings as a form of free speech?

On Oct 7, 2013 9:28 AM, "David" wrote:

On 10/4/13 8:46 PM, dan@geer.org wrote:

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I find the constant appearance of HTML e-mail here to be surprising. HTML improves nothing and adds risk. Why not have the mailing list censored down to ASCII?

Agreed. Although I would use the work "refined" not censored.

Interestingly, Yahoo lists did an excellent job of stripping out such

crapola and serving up useful ASCII. The other commercial mailing list services [Google, etc] don't offer it at all AFAIK.

But Yahoo has been "improving" things... they call it NEO. As part of a

larger disaster, they have removed that feature.

https://yahoo.uservoice.com/forums/209451-us-groups

Thanks for creating a new thread. This isn't the mailing lists job; it is your clients job. If you don't want to see HTML email then use a client that can't / won't interpret it.

On Mon, Oct 7, 2013, at 07:39 PM, Sandy Harris wrote:

On Mon, Oct 7, 2013 at 5:56 PM, Travis Biehn wrote:

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This isn't the mailing lists job; it is your clients job. If you don't want to see HTML email then use a client that can't / won't interpret it.

It is the sender's job. No-one should be sending such stuff to a public list since it serves no useful purpose. If your client won't send clean ASCII-only email, then switch to a client that will.

If senders do not do that, there are four options: flame them to a crisp (off-list, please!), let every reader handle it, remove the HTML at the server, or set the server to drop such messages entirely. I'd prefer the last, with an appropriate bounce message,

I think the third option is a reasonable compromise. I have reluctantly began to tolerate some HTML mail since I am doing some marketing research and consulting. But on a list like this, I agree, cute pink bunny backgrounds, funny fonts, and a number of other silly things that HTML mail allows don't belong. For that matter I can't think of one good reason to allow HTML mail. I can think of plenty of bad reasons though... -- Shawn K. Quinn skquinn@rushpost.com

Get off my lawn! (top posted, of course!) -- Al Billings http://makehacklearn.org On Monday, October 7, 2013 at 5:39 PM, Sandy Harris wrote:

It is the sender's job. No-one should be sending such stuff to a public list since it serves no useful purpose. If your client won't send clean ASCII-only email, then switch to a client that will.

[image: Inline image 1] On Tue, Oct 8, 2013 at 4:34 AM, Gregory Foster wrote:

-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA512

On 10/7/13 7:54 PM, Al Billings wrote:

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Get off my lawn!

(top posted, of course!)

-- Al Billings http://makehacklearn.org

On Monday, October 7, 2013 at 5:39 PM, Sandy Harris wrote:

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It is the sender's job. No-one should be sending such stuff to a public list since it serves no useful purpose. If your client won't send clean ASCII-only email, then switch to a client that will.

May I propose an inductive hypothesis, akin to Godwin's Law[1]:

As time passes on any email list configured to accept HTML email, the probability of the occurrence of the[2] HTML/ASCII email conversation approaches 1.

gf

[1] Wikipedia - "Godwin's Law" http://en.wikipedia.org/wiki/Godwin's_law

[2] Note the intentional use of "the" to signify a singular conversation, as the substance of this conversation is always the same, though the outcome depends wholly on the constitution of any particular list's constituents.

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| This isn't the mailing lists job; it is your clients job. | If you don't want to see HTML email then use a client that can't / won't | interpret it. I do. And it spits out statistics on to whom/what the mail that won't be shown was addressed. I started this as cpunks kept showing up. The irony of that was compelling. Onward, --dan

From: grarpamp Subject: Re: <nettime> A CEO who resisted NSA spying is out of prison.

$5000 to just enter not guilty and likely pay an attorney to defend it / accept dismissal may seem realistic. Thing is, that doesn't leave much payout to defendant. And a fair number of those pleas will be going to trial. That entails conviction risk, and regardless of time dealt, that risk will carry a higher price.

You are looking at this idea from the standpoint of a single defendant.  I am looking at this from the standpoint of the entire (U.S. federal) court system.  I am aware that most defendants will, in fact, be guilty of the crime charged.  Ordinarily, what happens is that the prosecution offers a plea deal that they consider realistic, and the defendant eventually agrees to some deal, with no trial involved.  That is why about 70,000 new defendants get convicted in the Federal system each year:   As I recall reading, about 3,500 demand, and receive, jury trials.  The remainder, 66,500, are convicted through plea deals.  Currently, many and in fact most of these defendants consider themselves fated to be convicted, and they see no 'upside' to pleading not-guilty and receiving a trial.  But I propose that an amount, for purposes of argument $5,000, be offered.  It will be paid after the defendant enters a not-guilty plea to a Federal felony,  and is sentenced (if he is convicted) or after he is acquitted.  Further, the defendant may direct that the money be paid to a third party, but NOT any government agency, court, or otherwise.     Many defendants who are already resigned to being convicted may have little or no money:  To them, an offer of $5,000 is an amazing windfall.  A person who is facing a (current average) sentence of 3 years (36 months) would get $5000/36 months, or $139 dollars per month, which buys a substantial amount of commissary.  (In prison, they have a store called a 'commissary', where they sell food, clothing, shoes, electronics, OTC medicine, etc.  Prisoners who have this much money live much happier lives in prison, compared to those who don't.)  He has a powerful motivation to accept the money.  Moreover, he knows that every other defendant is being offered the same deal.  He knows that if he pleads not guilty and demands and receives a jury trial, which is his right, he will receive the money.    He will get the money...AFTER he receives the trial.   He will, if necessary, be defended by a 'Federal Public Defender', who is paid by the government. 

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It could be arranged as a charitable contribution ('to encourage employment of the jury system',) and thus be tax-deductible.

Nonprofits, NGO's and crowdfunding appear to be a hot ticket these days. Set one up, pick some jurisdiction somewhere, camp out on the courthouse steps with your cash and attorneys in hand and see what works.

Well, that's the general idea.  But most of the work will be done by mail:  New cases can be discovered using a system called PACER  (www.pacer.gov) which allows anyone to identify new criminal (or civil, which is irrelevant here) cases.  Form-letters can be sent to defendants, and their attorneys. 

Also, no figures were presented regarding cost per case in court system. That matters too. You might be initially faster to jam it, but don't be too sure they won't deputize and set up courts on the front lawn in response.

    Cost-per-case won't be especially relevant.  While the number of physical courtrooms is one limitation, more important is the fact that it is very hard to put on a jury trial.  There is a lot of paperwork, witnesses must be corralled, jurors must be selected.  It ties up a lot of people for days.  Further, the Federal courts are already clogged with civil cases:  There simply is not a lot of 'give' in the current Federal Court system to add a flood of new cases.  Even if, hypothetically, the number of trials could be doubled, from 3,500 to 7,000, that would still be a reduction of a factor of 10 from today's 70,000 defendants.   While it is still conceivable that some defendants will take deals anyway, those deals will probably have to be much better than would have previously been given.     There is also an addition 'attack' that can be added, if it turns out to be desirable.  Regrettably, there are many homeless people who, for one reason or another, would actually be better off if they got sentenced to a few months or years in prison.  "Three hots and a cot", so the saying goes.  Doubtless some substantial proportion of prisoners are exactly such people.  But what if it were publicized that a person could do a 'note-robbery' of a bank, collect the money, and either flee or stay right there, in the bank.  They will get $5,000 after a Federal felony trial.  For some of these people (tens of thousands?) this would amount to a very attractive offer.  It would even more thoroughly flood the Federal 'justice' system.

You might have better success paying that $5k to vote however you want them to for the next decade (say defunding things) after their case/time as it might currently go is up. Or as someone said, run nullification TV ads and mailing campaigns. Etc.

Not sure what this has to do with cypherpunks, unless you count anonymous bitcoin donations from these CEO's, etc to your project.

    If you had made this claim 8 months ago, you would have been widely seen as having a valid point.  The problem is, a lot has happened since then, primarily flowing from Snowden's leaks.  Storage of most/all emails, backdoors in encryption systems, cell-phone metadata collection and (possibly) cell-site location monitoring, as well.  Ultimately, most of the stories contain a 'then X was served with a subpoena', or 'somebody was leaned on by the Feds', or 'the ISP was convinced to turn over secret information'.   These events had their negative consequences because some government had the power to extort cooperation.   Even if the public doesn't hear about these details, they exist.  The power of government is the ability to threaten people or companies with compliance, sometimes (but not always) because they did something illegal, even if they did nothing wrong.  See, for example, Joseph Nacchio, Quest CEO who was victimized apparently for refusal to turn over phone data.      We don't advocate encryption simply because it's fun:  We advocate encryption because it has a tendency to either defeat, or make it harder for, the enemy.  And 'the enemy', more times than not, is a government.  And if that 'enemy' has the ability to threaten, to strongarm, to 'rubber-hose' either our allies or the people we turn to for services, our positions are vastly more tenuous. 

Last, Joe crack dealer isn't newsworthy or profitable and will be let go to make a docket slot for Joe CEO. So you might have trouble getting funded from that sector without some rethink.

There is no doubt that ultimately, there WILL be some prosecutions, some of which are high-level prosecutions.  Keep in mind that as a libertarian, I would be ecstatic if the Federal government totally lost the ability to enforce anti-drug laws.  But I think that it would be possible to do more than that:  To disable governments' ability to act in any and all ways that violate libertarian principle.  And,  I would rather take my chances if 93% of the prosecutions are disabled, than if 0% are disabled.  I think you need to consider this matter quantitatively, not merely qualitatively.           Jim Bell

    I don't think I'm ignoring game-theory as much as you may think I am.  Obviously, people who are independently wealthy (and particularly if they have high incomes) are powerfully motivated to challenge any charges.  To them that $5,000 reward will have little effect at all.  The reason I think 'denial-of-disservice' will work is that a very large fraction of (current) Federal criminal defendants are not well financed, and in some cases many will view a few months (or years) in the pen as being tolerable.  There are probably 40,000 illegal-aliens, mostly drug smugglers.  A whole slew of bank-robbers.  A large fraction of the rest are there due to drug cases.  Only a very small proportion of those prisoners are the kind of wealthy, savvy people that you are describing.  Now, understand that one reason I believe what I do is because of a great deal of experience in observing the system first-hand, and it would take a long time to expose you to enough facts to demonstrate why I believe the things I do.  Your analysis is seemingly plausible if every defendant in question is independently rich, white-collar, and intelligent, but most prisoners don't have those advantages.      I understand why (in theory) plea-bargaining is done.  The problem, it's been horribly misused:  It was, no doubt, used in 1980 when there were about 20,000 Federal prisoners.  But rather than keeping the total prisoner population down and within reasonable limits, they decided to 'blow up the balloon' as far as they could, and thus the current figure is 220,000 prisoners.  'Plea bargaining' is precisely what made this abuse possible.   It WASN'T because people suddenly (or even gradually, over time) decided to commit 11 times as much crime as before!  This is a clue (!) that this increase in prisoner population isn't an unavoidable outcome, but in fact is entirely artificial and certainly avoidable endpoint.  http://www.forbes.com/sites/walterpavlo/2013/08/12/no-matter-the-dojs-announ...       I don't disagree with your idea of capping convictions (by law) at, say, 10,000 per year, at least as a concept: In fact, I can see that it would be a great step forward.  But the difficulty is, how can that be done?  Is it possible to force it on 'the system'?  And given America's corrupt/incompetent/malicious Congress, would they have a reason to vote in such a limitation?   They voted for the legislation that brought us to where we are now, and have tolerated it for 30+ years.   What I am proposing ought to work with that effect, even better, but without any need to convince these guys that it's a good outcome.   (Even better:  My idea amounts to a system to cap convictions at perhaps 5,000 per year, limited not by 'law' but instead to clog the system with its own detritus.)      Another solution I'd implement ("if I were King...") would be to prohibit sentencing convicted defendants at more than 10% greater than the time offered in the plea agreement (If the plea agreement offered 36 months, the ending sentence if convicted would be no greater than 39.6 months):  The current system only tries 5% of the defendants by jury; if sentences were limited to that 10% upgrade, far more defendants would demand a jury trial, and that would 'automatically' limit the number of defendants who could be convicted.  So, that would be a solution.  But getting Congress to approve such a change in law would be difficult or impossible.  (At least without AP-type convincing.)   I think America's Founding Fathers would have been astonished to learn that the jury system has been so obviously subverted as it is today.  But I am not in any way confident that such a solution could, in fact, be implemented, particularly against the will (and, thus, the influence) of the hundreds of thousands of people (cops, lawyers, judges, prison guards) who profit from the current system.      Also, I should mention that there have been and are a lot of illegal (not legal) activities in regards to Federal criminal sentencing over the last 13 years.  In 2000 there was a case called 'Apprendi v. New Jersey', which started out on the right track but all Federal appeals courts rejected the application of its principle to Federal criminal cases.  Then there was Blakely v. Washington (2004) which further expanded the thrust of the principle.  Unfortunately, an evil bitch named Ginsburg screwed up things in a truly wacky Supreme Court case called U.S. v. Booker (2005)  http://en.wikipedia.org/wiki/United_States_v._Booker    , completely backsliding in this line of cases.  Probably none of you reading the CP list have any idea what an atrocious history these cases had, especially Booker, but they are in large part why I have absolutely no confidence at all that the Federal 'criminal justice' system has any hope of being repaired, except perhaps by AP or 'denial of disservice attack' methods.             Jim Bell ________________________________ From: Adam Back To: Jim Bell Cc: grarpamp ; "cypherpunks@cpunks.org" ; Adam Back Sent: Monday, October 7, 2013 2:48 AM Subject: legal game-theory, case for smart-contracts & snow crash (Re: <nettime> A CEO who resisted NSA spying is out of prison.) I think maybe you are neglecting game theory for the accused, its hard to incentivize people to act in their collective interests, when they are thinking of their own future freedom and lost earning capacity.  I imagine you even have researched the statistics for this, but to summarise the game theory scenario: plea bargaining clearly results in less accurate justice (more innocent people do jail time), but has the real-politic benefit of reducing the cost of implementing justice.  The usual pattern (made up average numbers) is accept the plea do a discounted (lower than sentencing guideline) 3 years, reject the plea, the prosecution will make less reasonable/inflated charges (higher than sentencing guidelines, based on more tenuous/unlikey to be provable charges) threatening a scary 30 years, which in reality will be moderated down by a judge if the accused has the money for a decent lawyer to 5 years, if they lose, or 0 years if they win; if they are relying on an overworked, less capable public defender because they dont have the money to buy proper representation, their chances of winning are lower, and if they lose their post-trial sentencing will be higher at 10 years. Now law is a remarkably imprecise subject, especially when muddied with some not-so-scrupulous and politically motivated prosecutors, police entrapment, police bias (push for conviction based on opinion/bias, but statements given disproportionate weight by a system that believes it's officers over the public).  (Prosecutors and police are politically motivated because their career depends on conviction rates, headlines).  The system seems to largely ignore or not give adequate weight to investigating significant prosecutorial abuse or police bias.  Prosecutorial abuse has to be strongly proven, and the perpetrators are career ambitiuous, and legally qualified so know the grey areas they can exploit where the abuse will be unprovable even when it is very rarely alleged, or actually prosecuted.  Like police they have the benefit of the doubt, in a judicial system that favors its own officers, and so they are defacto largely immune from sanction from even significant systemic abuse, unless stupid enough to be caught red handed with with a smoking gun.  Which is to say even if you have millions to your name for the most capable legal defense, and completely innocent with reasonable but not iron clad alibi, its still subject to a high degree of randomness depending on political motivations surrounding. So therefore people will not fully follow game theory of going for the lowest expected sentencing.  Ie if p is probabity of winning, and the numbers above: then its 3 vs expected (p*0+(1-p)*5) so even p=2.5 its 2.5 expected vs 3, so if that was an investment you'd say good lets do it.  But if its choice between 3years and no more stress, vs legal defense cost and years of stress followed by 5 years if you're unlucky.  The dillema still holds if the odds p=0.75 and you have lots of money I suspect sadly that thats about as high as p gets for many areas of law.  You also have to factor in the loss of income (at the average income for prisoners) into the equation, and a premium because people would sooner earn less and have their freedom. You cant reform the system via kickstart fund and incentivize people to not accept pleas, well not at $5k anyway, because they'd need compensation for lost earnings and a huge loss of liberty premium if they lose, a stress premium for going to trial, and expenses for high quality legal defense. Those figures may no longer make game theory economic sense for society, though I do think the centuries old principle that its more important for one innocent party to go free than 100 guilty to be imprisoned is not properly incorporated into the current system as plea bargaining removes most of that intended objective. Even with best attempts at fairness and balance from police, prosecutor and judge (and there are genuine public spirited ethical people in some of those roles, who would ignore the perverse career motivations on principle, so it probably happens some of the time), the outcome STILL has an unfair plea imbalance and STILL high randomness.  Its an imperfect system even under the most favorable conditions. I think the solution is to politically vote to arbitrarily cap the incarceration rate to 10,000/annum; the justice system is not allowed to go over that limit by law.  They will then focus on cases where they think the incarceration is of most value to society (eg of making the public safer by taking a violent criminal off the streets).  Maybe the cap should be adjusted based on false conviction rates, if the false conviction rate increases, the cap decreases.  Independent review of potential prosecutor abuses should be increased.  Also the system should be restructured to remove the career/political motivation for prosecutors to achieve high conviction rates.  Their conviction rate should include a heavy mallus for a false conviction, so they strive to avoid convicting innocent people, and the system should somehow be adjusted to be less adversarial and to remove sentencing penalties for going to trial.  eg Maybe the trial sentencing level and charges should be set by an independent neutral body, not the prosecutor, with the objective of keeping the trial and plea sentencing the same.  Maybe simpler bargaining should be made illegal. Another specific problem in the US is its a one dollar one vote system, and operating privatized prisons is a high profit business.  The prison operators votes therefore likely outweigh the proportion of the public that is aware of the system problems or care enough to vote about it.  I believe other eg european justice systems are in fact less prone to these issues. So another solution is to vote with your feet. Basically in such a system you want to avoid even interacting with the legal system or justice system, period.  Even volutarily interacting as a random by-stander is unfortunately likely to be net loss to your finances or even freedoms.  Even to complain publicly about the defects of the system is probably risky once you have interacted with them.  Which is ridiculous but thats the reality. And finally some of the laws on the books are ridiculous on their face in the opinions of the accused's peers.  eg computer abuse act which sees Weev in jail and such like stories, and the sentencing guidelines are also often ridiculous and non-proportional eg the sentencing threats to Swartz for what was probably not even a copyright crime (going on the theory from his previous activism pattern that he was aiming to republish the subset of articles that were public domain).  His trial sentencing threat was above a 1st degree homicide with iron clad evidence, something's got to be wrong with that.  The sentencing board are failing in their task.  Something should also be done to restrict scope for judicial vengence also - Swartz made a mockery of a stupid law, with his previous popularly supported activism stunt, and so prosecutors were out to get him. Also legal systems generally seem to lag 50-200 years behind the opinions of the public Some jurisdictions are better than others, but the system of case law mixed with precedent creates a built in brake on legal theory evolution. Out of touch with reality and public opinion prosecutors, judges and sentencing another issue.  Probably law should be restricted to 1MByte of ascii text and any law not approved by 90% referendum (1 person one vote, not 1 dollar one vote) struck off automatically every year. This state of significantly imperfect, and hard to reform, high cost legal system issue is why smart-contracts look so attractive.  Its not even obvious how to improve the legal systems and they evolve slowly and resist experimental change.  Mathematical aprior enforcement, deference to mutually agreed competing impartial arbitrators for dispute.  Pseudonymous smart-contracting parties FTW.  Of course it doesnt work for in-person crimes, except in a "Snow Crash" sense (cometing legal systems/governments in the same physical space) but a justice system that leant heavily on smart-contracts and refused as a principle to revise contracts where both parties received competent legal advice, nor overturn arbitrator decisions, would be a step forward for society. Adam On Sun, Oct 06, 2013 at 09:57:57PM -0700, Jim Bell wrote:

  Subject: Re: <nettime> A CEO who resisted NSA spying is out of prison.   >$5000 to just enter not guilty and likely pay an attorney to defend   >it / accept dismissal may seem realistic. Thing is, that doesn't   >leave much payout to defendant. And a fair number of those pleas   >will be going to trial. That entails conviction risk, and regardless   >of time dealt, that risk will carry a higher price.

On Tue, Oct 8, 2013 at 11:20 PM, coderman wrote:

On Tue, Oct 8, 2013 at 8:00 PM, Jim Bell wrote:

...

... they are in large part why I have absolutely no confidence at all that the ... system has any hope of being repaired, except perhaps by AP or 'denial of disservice attack' methods.

Jim, you're preaching to the choir.

Aye, lest any be unfamiliar with history... once systems begin engaging in self protection, there is little hope in repair, ever. At that point, only the fight has meaning, and keeps the fighters going, until, one day, they tear down that wall and step through to start anew, that noble cause which compelled them to fight. No one's words here, but those of history. Perhaps one day history will break from its well worn pattern of renewal and begin to record a novel continuum. An interesting day that will be.