[messaging] Value of deniability

[micah]

Jacob Appelbaum <jacob at appelbaum.net> writes:

> On 12/11/14, micah <micah at riseup.net> wrote:
>> Jacob Appelbaum <jacob at appelbaum.net> writes:
>>
>>> A digital signature is binding. A lack of a digital signature on a
>>> text file certainly leaves room for assertion of tampering and of
>>> repudiation of the statements contained in the text file. As I
>>> understand the legal case in Denmark, at least one of the two people
>>> in Anakata's case declared denied the contents of what appears to be a
>>> logged OTR conversation. If they had used PGP encrypted/signed mails,
>>> I think the prosecution would have made a very strong argument about
>>> PGP signatures.
>>>
>>> Does that count as a reference to case law? I've requested transcripts
>>> of the trial but after over a month of waiting, I'm not sure when they
>>> will be delivered.
>>
>> Maybe I'm misunderstanding which case you are referring to, but as far
>> as I understood it Anakata, and JLT were both found guilty. Anakata has
>> been sentenced to 3.5 years in jail. JLT, who has already served 17
>> months of pre-trial detention, was released.
>
> I am referencing both cases in Sweden and in Denmark as a recent
> example of an OTR chat being cited in court. What you said is correct
> - though the specifics aren't really correct. JLT was not found guilty
> of anything in the original indictment - he was later found guilty, as
> I understand it, of having sent a link to public information to an
> unknown party.

Thanks for clarifying, my understanding of this case is obviously quite
thin, especially compared to your involvement as an expert witness.

I think that the assertion that was made here (I am not arguing in favor
or against this at the moment, just trying to clarify this point) is
that deniability as a property of OTR is questionable because there is
no case law that shows that it is something that can be legally relied
on as a defense. I dont know how the legal systems work in those
countries, but I am pretty sure that citing OTR chat in court is not
what would be commonly accepted as 'case law'[0]. Some actual published
result would need to be put out there to be 'case law', but a judge
agreeing on a point, if that is published could be useful for
argumentation, but doesn't mean it is 'case law'.

However, with that said, it seems to me a little funny to claim that
OTR's deniability aspect is not worth anything because there isn't any
case law. That's like saying "cryptography is pointless because there's
no published decisions stating that it's effective." OTR is a novel
aspect of the law, until some actual case law is made, you can't really
argue against something because there is no case law. Now lawyers may
argue that they think that based on their experience, and their study,
that such a provision may not actually stand in a court, it would be
only their opinion, based on their knowledge and current state of
affairs, it doesn't necessarily preclude it being something that people
could try to argue and make good case law out of...but trying to tear
out that aspect of OTR because that hasn't happened seems to be to be
putting the cart before the horse... now where it is important is if
people are counting on that aspect and do not realize the fact that
there is no legal basis to stand on, and that they may need to fight an
uphill battle before it is established as something that can be relied
on to disprove the authenticity of chats.

>> What I read was that the prosecution managed to present the evidence (a
>> chat between “Advanced Persistent Terrorist Threat” and “My Evil Twin”,
>> which were linked to the Anakata and JLT by the prosecution). The judges
>> and the jurors supported these conclusions and rendered guilty verdicts
>> as a result.
>>
>
> Could you show me the document that conclusively ties each person to
> each of those nyms? My understanding is that this was not concluded in
> court.

No, I cannot. I can't even access the US-based system for pulling up
that stuff, much less have a clue how to do so in a Danish context
(language or knowledge of the system). My statements only come from what
I've read about the results of the case online, which were filtered
through various mediums.

micah


0. Case law refers to (at least in common law countries like the UK, US,
Canada, Australia, NZ, etc.), law "created" by judges.... that generally
means, for example, applying the law to a new set of facts. A case that
does so creates a precedent for future cases involving the same or
similar facts.

It is more complicated than that, generally in the US, only "published"
appellate decisions create precedent, technically an unpublished
decision does not set precedent, and thus, does not create case law.

More to the point, trial court decisions are, by their very nature, not
precedential. That being said, it is certainly persuasive authority (not
binding, but relevant) if you can show that there is "unpublished" case
law proving your point. So if this were the US, this case would
absolutely be relevant, and helpful, to have a trial court make that
ruling, even though, in a technical sense, it does not set precedent for
future cases (if the case was appealed, then it might set precedent).