<nettime> How government surveillance killed the cypherpunks list

[Declan McCullagh <declan@well.com>]

----- Forwarded message from Declan McCullagh <declan@well.com> -----

From: Declan McCullagh <declan@well.com>
Subject: Cypherpunks, Feds, and Pudgyfaced Voyeurism
To: cypherpunks@cyberpass.net, cypherpunks@lne.com
Date: Wed, 11 Apr 2001 19:39:44 -0400
X-URL: http://www.mccullagh.org/
User-Agent: Mutt/1.2.2i

The cypherpunks list has become a popular tourist destination in the
last two years for voyeuristic Feds in Washington and Oregon.

This monitoring has been less cyber-stalking of the chargeable sort,
and more a kind of spectator sport, something to chat about with
fellow TIGTAians at the water cooler, and maybe launch some
investigations every now and then.

We all know that, from his own testimony, a pudgyfaced Jeff Gordon has
become enraptured by the cypherpunks list. We know from exhibits that
he subscribes to the list from apparently a Hotmail account, but the
relevant headers were redacted so we don't know which one. We also
know that Gordon & co infiltrated the common law court and Libertarian
Party and monitored the "northwest libertarians" mailing list. Anyone
attending the first Seattle-area cypherpunk meeting next week may want
to check for Gordonian bodywires.

The real surprise is not that investigator-stalkee Gordon has extended
his arguably unethical pursuit of Bell and cypherpunks, but that other
area Feds have joined the fun.

For instance, Assistant U.S. Attorney Floyd Short teaches a course on
cybercrime at the University of Washington law school on Thursdays,
and has reportedly made the cypherpunks list a part of his class.
Short has also spoken about the cypherpunks list and its relation to
online lawlessness during at least two speeches, I'm told.

The cypherpunks list, in other words, is a staple of law classes not
because of participants' views about privacy -- but because of the
number of their number who are now serving time.

One assistant U.S. Marshal in charge of moving Jim Bell from the
downstairs holding pen to the courtroom confessed to me yesterday that
he's a cypherpunks fan. Not in the
ending-the-nation-state-through-crypto sense, but he finds the list
interesting enough to read on a daily basis through the inet-one
archive site. He was puzzled about why it's been down; the speculation
seems to be that it's related to cyberpass' problems. He told me he's
been a list reader for about two years.

Someone could make a tidy profit by compiling a complete cypherpunks
archive and selling it to the Feds on CD-ROM for use in prosecutions.

Note that if Bell had not posted under his real name to cypherpunks
during his investigation of federal agents last year, he would not be
facing perhaps five more years in prison. The government buttressed
its case against Bell by using each message that could conceivably be
relevant as structural support for its Good Society vs. Internet tale
to the jury.

Email to the cypherpunks list appears dozens of times in the
government's pretrial list of exhibits. Assistant U.S. Attorney Robb
London led the jury on a post-rich digression about plausible
deniability that included posts from occasional participants like
Michael Froomkin and Black Unicorn. London argued that Bell's
investigation gave him plausible deniability for stalking. During
closing arguments yesterday, London brought it up once more: "Let's
talk about plausible deniability. It's a whole big part of what the
cypherpunks are into."

You'll recall that London and Gordon were involved in the prior
prosecution of Carl Johnson, another cypherpunk regular. Perhaps the
Feds are frustrated since during their obsessive-compulsive
cyphersurveillance, they can only listen and not post in response to
windy rants about the perils of big government. At least not under
their real names.

The Tacoma courtroom is a sterile place, kind of
Singapore-meets-the-Bastille. Not helping the atmosphere is the
half-dozen agents, some armed, who populated the audience benches
during the Bell trial. In addition to two reporters, only one non-Fed
observer showed up every day; she took notes and posted them to the
cypherpunks list. When this unnamed 'punk introduced herself to Bell's
parents after a week of being anonymous, all the Feds' heads swivelled
to hear what her name was.

Like the old-media types they are -- London says he's a former legal
reporter for The New York Times -- the Feds hardly appreciated online
reports from the trial by John Young and that anonymous local
cypherpunk. London, whose courtroom demeanor veers between snide and
surly, griped loudly during a recess last week about "glorified
stenographers" taking up space in the courtroom. The six bodyguards
offered up appropriate nasty glares.

But Gordon seems to be the true antipunk. (London has indicated he
didn't want to prosecute this case, and missed out on a more
high-profile one because of it.) After the jury delivered their
partial verdict, Gordon leaned over from his seat at counsel table and
asked London to seal the court records. London dutifully requested
that U.S. District Judge Jack Tanner seal any information or exhibit
or transcript that included home addresses of alleged stalkees. Now,
those data are arguably key to the government's case against Bell --
did he drive to this address or not? -- and were discussed at great
length in open court. Tanner denied the motion, and Gordon wasn't
happy.

You can be sure that Tanner has learned all about the "TannerWatch"
website, and is hardly amused by it. You can also bet that some
unnamed agent will be watching who asks for copies of the court file
-- they seem to fear that some local 'punk will try to obtain Bell's
diary, which was introduced as evidence and seems to include not just
inaccurate home address of government agents, but accurate ones as
well. Watch for more investigations here -- apparently court
information does not want to be free. Anyone know if that grand jury
meeting in the Seattle federal courthouse is still in session?

It would be interesting to find out why local papers didn't cover the
trial, even after some residents repeatedly suggested they do so. The
only other reporter there besides your humble correspondent was a
Washington, DC correspondent one from 60 Minutes. Other reporters from
local newspapers had covered unremarkable pre-trial hearings at great
length, but failed to cover a fairly unusual trial. I'm told they
didn't want to have to fight subpoenas. As a former journalist
himself, London probably knew exactly how to handle them -- and avoid
potentially unfavorable press coverage.

Government prosecutors now appear to qualify as technical experts on
the cypherpunk phenom, having scrutinized listmember behavior as ants
under lenses. London told the jury yesterday that "the one unifying
theme that defines someone as a cypherpunk on the Internet is the
ability to encrypt mail." One could say the same thing about a NAI
marketing flack, but that wouldn't be as quotable.

It's all so sad and predictable and sad again. The cypherpunks list
had its glory days: Wired magazine cover stories, blossoming
technology, and, yes, even those damnable tentacles. Now it's become a
convenient way for the Feds to land convictions.

-Declan
Washington, DC
April 11, 2001

Background:
http://www.cluebot.com/search.pl?topic=ap-politics
http://www.mccullagh.org/subpoena/

This article is at:
http://www.cluebot.com/article.pl?sid=01/04/11/238254

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