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.

Statute of limitations...

Then we'll start seeing things like -

Six months and one day from now, you will be a dumb fuck. Sue me.

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How do you establish time?

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 while we're at it...

I, for one, think that the ESCAPE key, should allow you to escape. Say I'm sitting at work, bored out of my mind with my boss on my ass, and wishing that I could just get the hell out of there. Escape key should really do what it advertises.

And the space bar.

I propose...

...that all keys should mean what they say. "Hmm...I think I'll order a TAB." -- Homer

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will this really be helpful?

This is really an interesting proposal. What USENET, and now the WWW, have shown is that information online never really dies -- I'm sure many of us can go through USENET and mailing list archive services and find embarassing rants and flamewars of yesteryear. My question is, in what context would such a statute of limitations truly be useful? Not in a personal context, surely... and in a legal situation, it might not do much good. For instance, what if the e-mail/posting/whatever contained evidence absolving you of a crime, but was ruled impermissible because it was from a year ago?

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.

Judge's Ideas :

While I agree with what the judge envisions he needs to remember a few things.

• In a large corperation the mail server is backed up, and there is usually a storage schedule for backups. Unless you are getting your mail from home, it's most likely on the back up tapes
• With SO many people complaining that they "accidently" deleted things (thus the need for a "recycle bin" Can you see whats going to happen when you give the secretary at your law office a "REAL" delete key?
• How much overhead does a real delete require?
• People save the silliest things (I have email going back 6 years myself) If a company TRULY wants to prevent e-mails from past generatiosn coming back to haunt them they need to teach their users to delete mail older than x number of days (and destroy backup tapes older than the same also!)

Like anything, the solutions isn't as obvious as those non technical people would like it to be.

Re:Dumpster Diving

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?

Really people

A statute of limitations? Something's either admissable or it isn't. If you send someone an email telling them you're going to kill them and you're put up on murder charges six months later, what makes it any less admissable then? In my opinion it shouldn't ever be admissable considering how easy it is to fake an email, but that's not quite relevant...

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.

Re:And while we're at it...

Where can I get an automatic keyboard? Mine has 2 shifts!

Several times a day I lose ctrl, need to pause or even have a proper break, and at the end of the day, I go home.

you have the wrong idea.....

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?

Re:Judge's Ideas :

What the judge is proposing is a statute of limitations of 6 months on such data. So even if it is backed up somewhere it won't be admissible as evidence.

Of course, inadmissible evidence is extremely useful in persuading jurors from time to time.

Practicality

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.

Re:Really people

A statute of limitations? Something's either admissable or it isn't.

Yes, it is admissible before the statute of limitations expires, and inadmissible after the statute of limitations expires.

The judge is not talking about criminal law, but civil law. In criminal law, evidence does not "expire", but as you cannot be prosecuted for certain crimes after a given period of time has passed since the alleged offense, the evidence is moot. The idea is that you shouldn't throw a forty-year-old man in jail for a red light he ran when he was eighteen. I should point out that in most jurisdictions there is no statute of limitations on murder and other infamous crimes.

What the judge is trying to do is limit the viability of e-mail in civil litigation. Hypothetical situation: four years ago one of your coworkers made a huge, obsessive, gigantic stink about something, and you end up wasting an entire week chasing shadows as a result. When you tell her she was wrong and wasted your time, she fires off an angry e-mail to your boss. Your boss forwards it to you with a note attached, "What's this about?" You reply, "Remember how I showed you that Foobley component wouldn't work in the Warbley project? She's still bitching about it." He writes back one line: "I figured as much."

After four more years of similar raving nonsense on every single project she's on, nobody takes her seriously about anything anymore. Feeling like there must be some other reason she's been ostracized, she quits the company and sues for sexual harassment. All e-mail records from every employee she has ever worked with get subpoenaed. Your e-mail from four years ago is dredged up. And in it, ladies and gentlemen of the jury, this bigoted, sexist monster used the vile, derogatory term "bitch" to refer to my client, a person of gender! This degenerate, immature pig used vicious, defamatory language in the workplace, thereby creating a hostile work environment for my poor victimized client. And instead of taking immediate corrective action, this penis-monster's boss, another penis-monster, conspired to agree with the characterization! There was collusion, sexism, and conspiracy at every level of this corporation to single out this innocent victimized woman. Therefore this penis-monster and his employer owe her one million dollars plus another twenty million in punitive damages.

Fun, huh?

Look---I send a lot of e-mail to coworkers who are only two or three cubes away. That way, our conversations can be asynchronous. The fact that we are using a written medium does not mean the conversation is not intended to be casual and ephemeral. The fact that I delete a piece of e-mail means that I consider it no longer relevant; either that I no longer endorse what it says or that I believe its context has disappeared. Say your boss is a Cardinals fan. He starts ridiculing the Braves in front of you and another Braves fan coworker. You tell him right to his face that he's full of shit, and he laughs and asks what the weather will be like in Atlanta for the last game of the series. Later, you send coworker an email that says "He's so full of shit!" You weren't talking about his qualifications as a manager; you were discussing his bogus sports opinions. But taken outside the context of the previous conversation, and your company has grounds to deny you a raise or fire you. After all, there it is in black and white, you saying your boss is full of shit.

I believe these are the sort of situations Hizzoner was referring to.

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Why treat electronic documents differently?

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.

Re:Judge's Ideas :

What the judge is proposing is a statute of limitations of 6 months on such data. So even if it is backed up somewhere it won't be admissible as evidence

I don't see why electronic data should be any different than any other kind. If I write something down, it will still be admissible in 6 months. Same with something I say. Why should it be different if it's in an electronic format? If I throw something in the trash, is it forever gone? Not a chance. It's perfectly legal for the cops to search my trash, same with electronic files.

As far as true deleting goes, there are numerous programs that will do it for you. Many programs have a "shredder" function, which permanently deletes a file. It's no different than a paper copy. I can throw it away, but if I want to make sure it's really gone, I have to use a paper shredder. Same concept applies electronicly. I can delete it, but if I really want to make sure it's gone, I need to use a "file shredder". Just because it's electronic doesn't make it different.

Re:And while we're at it...

And don't press Insert-Page Up-End unless you're reading a book printed on soft paper.

Rich

Re:will this really be helpful?

What USENET, [...] have shown is that information online never really dies

It just sits around on backup tape at the dejanews offices.

Rich

I think most have missed the point

I've read a lot of messages responding to this article stating police authorities wouldn't ignore evidence of a crime that was 6 months plus a day old. The judge on the other had was essentially stating he believed when you deleted something, it should be destroyed completely. He was also intelligent enough to know that immediate deletion was a bad thing, that there should be some durability to it. But after 6 months, the file should be completely gone, scrambled via one of many technological means.

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.

a good way to delete

one day I was programming a joke hard drive eraser... and it just wasn't looking real enough, so i decided to have it open the files it was saying it was deleting... after i ran it i was amazed at how real it seemed... then i realized the act of openning the filed it erased their contents, i now had a hard drive of 0 byte files... only files that survived were the ones in use..... fun! :(

Re:Legislating Pi to be 3

From what I read the judge was NOT advocating legislative or judicial action to enforce features of software design -- if he had, I'd be quite ready to rant about it myself.

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.

Not getting it

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.

Expectations vs. Reality

I think the intent is to provide the service that the user expects.

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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Engineer Replies

Does it strike anyone else odd that a judge is trying to define a computer function? I understand what he's trying to do by suggesting the statue of limitations, but c'mon. What if the roles were reversed?

<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>

Slashdotters just don't "get it"

Seems to me that most of the folks here failed Reading Comprehension 101. The judge is talking about scenarios like the following:

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.

Re:It is sad, but true.

> Isn't this like saying that a cassette tape which held a pirated Metallica
> 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 [nondot.org].

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.

Re:Judge's Ideas :

I think the Judge's point is that e-mail has become so common that if we don't add this protection normal e-mail conversation is/will become more stifled. Making people overly consious of their e-mail may have a detrimental effect greater than letting people "get away" from something they wrote 6 months after they said it. The permanence and ubiquity of e-mail is something that is significantly different from conversation and also writing (conversation usually gets "lost" immediately and writing tends to be much more careful than "e-mailing".).

Yes, there are programs that really will delete things, but what percentage of users do you think would know how to use them? Maybe 10%? Even if you know how to use these programs, what happens if you want to delete your e-mail a week later? Oopps you admin backed up your files. Now, there's really no practical way for you to delete it.

I find the Judge's ideas quite interesting and definitely worth thinking about and debating.