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Judge Thinks Delete Should Mean Delete
leighton writes: "According to The New York Times (free registration required, for those who care about such things), a prominent judge recently wrote an article saying that the delete key should actually delete things, not just hide them away where lawyers and skilled computer geeks can get at them years later. Specifically, he proposes that a statute of limitations be imposed upon electronic messages--that, for example, an obnoxious email you send today could be held against you for six months and six months only." This is an astonishingly insightful idea - since electronic communication has changed the lifespan of casual conversations from ephemeral to permanent, it's possible for the law to change its standards to restore that ephemerality. The judge's original paper is linked off of The Green Bag.
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Sheesh, evil *and* a jerk. -- Jade
When I post something, it pretty much becomes a matter of public record- it is out there, out of my control. The only proof of the date and time I posted it is as ephemeral as the text that I posted. And both can be easily changed by someone leaving no indication that the text has been changed.
Realistically, I don't think we should be held (legally) liable for those things that we post unless it has some sort of secure, verifable, signing mechanism- there is no way to tell who is really posting a message, or what has happened to it after it has left the author's system.
Delete = gone is nice- We have that option when it comes to shredders and incinerators for our paper correspondence, I think the concept has to be a bit more fleshed out to be truely applicable to the digital medium.
And the space bar.
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...that all keys should mean what they say. "Hmm...I think I'll order a TAB." -- Homer
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Wooden armaments to battle your imaginary foes!
What is the judge worried about, anyway -- his wife finding his online porn stash, or e-mails to his mistress? Just use decent encryption and utilities like PGP, and you'll be fine.
This judge really sounds paranoid. What he needs is a secure delete program, an operating system which doesn't store remnants of temp files everywhere, and an sledgehammer to "obfuscate" his disk when he gets a new PC.
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All generalizations are false.
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I like to watch.
Like anything, the solutions isn't as obvious as those non technical people would like it to be.
"Science is about ego as much as it is about discovery and truth " - I said it, so sue me.
IANAL, but last time I checked, info gleaned from the trash was admissable under certain conditions.
Anyway nothing requires criminals to place incriminating documents in the trash, they could shread, pulp or burn them. Why should electronic documents be treated any differently?
As for the "delete" key, anyone who works in sensitive information knows how to fully delete something. A lot of times (in fact most of the times) a normal Windows or whatever user would prefer that their data isn't permanantly lost when they accidentally hit the delete key. There's a reason that stupid "recycle bin" (or the original Trash Can from Mac) ever became popular-- people screw up.
he's not talking about posting of stories to public forums. read the article and then the paper. he's overwhelmingly talking about items contained on our personal HDDs: email, notes, papers, spreadsheets...ie personal stuff.
the expectation of his paper is to raise the idea of "when does something you deleted die?" his fear is that it doesn't. ever.
but as a general question: what makes email i delete any different that voice tapes i erase, which later can be recovered? are we going to excuse Nixon now? where do we draw the distinction between media types?
/* Half alive and half dead too, work is for suckers and the sucker is you. - "Half-life" by Local H*/
From a practical standpoint, it is incredibly simple to forge a timestamp. If this document is about to "expire", I could just update the timestamp (touch for instance).
The only practical way I could think of in the 30 seconds I devoted to making this work is through a trusted third party that stores timestamps in a secure manner, and can be used as a reference. But don't expect people to have a third party stamping mail for them. I certainly wouldn't trust this 'generally trusted' party.
I dissent.
1) This is a recipe for disaster, where one can spend even more money litigating the virtual ephemerality than one spends on discovery. (We already spend more money on discovery than we do in preparing trial materials on the merits.) Still further, we can defeat this by simply replacing archives with "deletions," knowing that we can recover the data if we want it, but defeat discovery by claiming it was "deleted." Rather than create legal fictions in lieu of reality, why not simply put on those who intend to destroy things the burden if doing it well?
2) Even if it were practical, why are we treating discarded information differently from other non-discarded information? Why should we be permitted to go into the deep archives of a building to find smoking gun memoranda long thought destroyed, but not into the interstices of a hard disk?
3) It would be one thing to say, "no, we won't permit discovery." It is another thing to create some special-purpose exception to an exemption to a rule, knowing the rule to be filled with unanticipated consequences.
But the real problem I have with this proposal is more fundamental -- the proposal has the effect of concealing the truth without any other clear benefit.
It rewards a guy who meant to conceal some truth, probably reliable evidence in view of the effort, by concealing it after he screwed up in trying to destroy it.
There exist a host of rules (materiality, hearsay, best evidence, the exclusion rule for profits of an illegal search) during legal proceedings that keep evidence from finders of fact, but those rules tend to support other policies, such as reliabiity, civil liberties, and even oxymoronic judicial efficiency.
This proposed rule exists solely to make relevant, reliable evidence inadmissible. That doesn't, at least to me, seem just.
Instead of a trash bin it would be a shredder and you can set the time of when the files would be atomized completely. Thus there wouldn't be any evidence for authorities to find in the first place.
Now, is this something we really want? I don't know. But I do suspect tech criminals already scramble their files.
This is not the way to build a lasting empire.
Comment removed based on user account deletion
Judge Rosenbaum points out that the incompleteness of deletions (as they stand now) is affecting the legal system and indirectly, everyday activity. Lawyers are going to go after any electronic record they can get and use it to their best advantage. Everybody has to cope with that and they do cope by restricting what they put in electronic writing. Judges and juries understand already what the status of such "deleted" records really is, but are you going to trust that a lawyer won't be able to make it appear more damning than it is? I'm not.
This de facto self-censorship of electronic discussions is what Judge Rosenbaum thinks is a bad thing that could be improved by making sure that "delete" means "delete."
It's unlikely to happen, but he has a point.
What's a sig?
After reading some replies, I have to say the Slashdotters don't Get It(TM). The judge is not saying that everyone should go back and recode. He is not saying that if you threaten someone then actually do harm to them, that after 6 months it would be inadmissible. What he is saying is the law should recognize that people are imperfect and that email is not formal correspondence. Email should be treated as a passing conversation. Sure I may threaten you in an email, but there is no way to tell from a printed word that I was joking. If I really did have a problem and the threat was serious, then there would be some sort of physical, real-world evidence of that to back it up. For example, maybe I'm stalking you, leaving threatening phone messages, egging your house, etc. The point is there will be ACTION to tie it all together. What the Judge is trying to stop is that I jokingly threaten you in an email, then years later that email is dug up out of the blue and used to charge me with attempted assault with no other evidence to back it up.
There are two ways to match reality with expectations: bring reality closer to expectations (through legal and/or technical measures), or bring expectations closer to reality (through education).
Certainly it'd be nice to be able to permanently delete some things sometimes. But in general, it might hamper the industry if we force them to implement everything the user expects (and burn tax dollars for enforcement). Alternatively, the government could simply educate the user as to what's really happening, and explain to them how to get the desired results if they still deem it necessary.
This is one nice feature of a sensational press. The wider the gap between expectation and reality, the more of a scandal it will be when the press exposes it. So the press is encouraged to work hard to find the widest gaps and "educate" the citizens about them. And the citizens don't end up paying taxes for strict enforcement of relatively minor gaps. They just "pay" by viewing advertisements, and they only "pay" for the things that really matter to them.
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<parody>
In a related story, prominent Silicon Valley computer engineer John Q. Programmer has written an article that legal briefs, should be brief.
Mr. Programmer has written, "Too long have we be burdened by misnamed legal 'briefs.' Brief should mean brief." He went on to write, "I am proposing a technical solution to this problem, we should develop a data structure to hold all legal briefs in a data field of char[256]."
</parody>
1. I'm pissed off at someone and write an insulting and scathing letter to them. I save it to the hard drive.
2. After a few minutes, I calm down and "delete" the letter. I then write a new, more civil, letter and send it.
3. After a few months, my relationship with the recipient degrades even further. They file suit.
4. During discover, they sopoena (sp?) my computer and discover the original ("deleted") letter. The letter I never sent.
The question is, should that "deleted" letter be used against me in a court of law? The judge is saying, "no", it's the same as writing a draft and tossing it into the trash.
I have no idea what most slashdotters are rambling about.
> song and was then recorded over with white noise and then a clear signal
>is still possible to recover the Metallica song intact?
Actually, its not just like that, it is that.
A good introduction to the field: A 1996 paper on Secure Deletion of Data from Magnetic and Solid-State Memory.
Be warned that this paper was dated 1996. Technology has improved significantly since then. The state of the art in magnetic force microscopy and magnetic force scanning tunnelling microscopy is almost certainly highly classified.
Your audio analogy is excellent. In the case of your cassette tape, it's a virtual certainty that the record head was "off" by a fraction of an inch when it recorded the white noise over your Metallica. (And it went "off" by a different fraction of an inch when you recorded the clear signal on top of it).
So, a forensics dude will use tools to read the fraction of an inch that didn't get overwritten by the white noise, and the other fraction of an inch that escaped the clear tone, and reconstruct most of the Metallica song.
The same thing works with hard drives, except it's a hell of a lot more work.
That having been said, this technology is at the bleeding edge and costs a fortune. It's probably only used in to recover data of interest to national security.
Your typical criminal is st00pid, and your typical FBI goon merely looks at unallocated blocks containing data the criminal thought was erased.
A smart FBI goon will also use a tool to read sectors that have been marked as "bad" - there may be data there that the
A good data shredder, incidentally, will take into account the model of the hard drive and the encoding method used by the firmware - when you write "FF" to a drive, you're not actually writing eight "north poles" in sequence - and write a sequence of bytes geared to "even out" the magnetic flux as much as possible.
That said, even this isn't bulletproof. The last time I looked, the only acceptable standard in the military (and presumably in the intelligence community) for scrubbing highly sensitive data is physical destruction of the media.
If it's your nudie pics or your company's secrets, encrypt the volume or scrub the data when you're done with it. Better yet, do both.
If it's plans for compact nuclear warheads and you want to sell them to the Chinese government, make sure your friends give lots of money to the Democrats. Uh. I meant, "physically destroy the media after you've made the sale".
As long as the media is intact, if the data's important enough, someone will be able to recover it.