Re: [tor-relays] Subpoena received

[Zenaan Harkness <zen@xxxxxxxxxxxx>]

On 4/21/15, Dave Warren <davew@xxxxxxxxxxxx> wrote:
> On 2015-04-20 10:31, Speak Freely wrote:
>> A foreign sovereign can command anything to anyone... without a
>> reasonable expectation that anyone will follow it.
>>
>> Even in Canada, I am not obliged to respond to American subpoenas unless
>> and until my government commands me to. Only your sovereign can command
>> you to do anything. A foreign sovereign has zero right to anything
>> outside of it's own purview.
>
> Keep in mind that if you do respond at all, the US court may claim to
> have waived jurisdictional arguments and consented to the jurisdiction,
> in which case a court order can be enforced cross-jurisdictionally in
> certain cases. Spamhaus learned the hard way when they hired a US lawyer
> to represent them and that lawyer responded incorrectly and enabled the
> lawsuit to become binding upon themselves despite the lack of physical
> presence within the US.
>
> While they ultimately prevailed on their appeal to the greatest degree
> still available, they were unable to vacate the default judgement
> entirely (only the amount), so while they ended up paying a nominal
> amount and winning for more useful purposes, they technically lost the
> case. Had they failed to appeal or lost the appeal, the resulting order
> would have been binding and enforceable in UK courts because Spamhaus's
> actions consented to the plaintiff's choice of jurisdiction.

This is very interesting. In Australia, consent to give evidence and
be cross examined, can later be withdrawn. The principle AIUI (IANAL)
is that where consent can be given, and is given, such freedom to give
is also the freedom to take away and therefore consent can be removed
at any time.

To be safe though, I would recommend that any party giving conditional
consent to appear, in any jurisidiction including their own
jurisdictions ordinarily binding upon themselves, to enter a formal
Conditional Appearance, specifically limiting the extent of the
jurisdiction consented to, and reserving the right to withdraw consent
upon written notice to that court (or any high court if the case goes
to any such court on appeal etc).

I am quite surprised that Spamhaus's lawyer(s) failed to do this,
failed to give conditional consent for Spamhaus to appear in the
jurisdiction, failed to formalise Spamhaus' consent to appear, and
failed to advise Spamhaus that once given, their conditional (or full,
for a time) consent to appear could be withdrawn and that it ought to
have been withdrawn, and in fact that the lawyers should have
immediately withdrawn Spamhaus' consent to appear when that was
needed. I do have a fair idea why Spamhaus' American lawyers
'overlooked' all these things.


> On the criminal side, you can also be extradited in certain cases. Kim
> Dotcom is still working through the complexities of this particular
> situation.
>
> So I would highly recommend engaging a lawyer to verify that your
> actions don't waive any arguments or otherwise consent to anything that
> can be enforced across borders.

The point is, the lawyers that Spamhaus engaged may well have fucked
them over, intentionally or otherwise.

I highly recommend engaging common sense, verify everything you
otherwise assume, and assume your lawyers are not acting in your own
interest and need to be micro managed. E.g., insist on the address for
service being you and you personally, then send copies of all
documents you choose for your lawyer to view, to your lawyer, keeping
the originals. Likwise, e.g. having your lawyer send all documents
they produce on your behalf, to you, and you keeping a copy before you
sending said document(s) to the relevant parties (which may be the
court itself).

Oh, and insist on a detailed schedule of fees before engaging them.

Keep a Strong, Short, Tight leash on your lawyer!!

> (And no, odds of any of this impacting a simple Tor operator are not
> very high unless you're otherwise a high profile or high value target)

Good luck people :)
Zenaan
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