From: edgar@spectrx.Saigon.COM (Edgar W. Swank)
Date: Mon, 25 Jan 93 14:58:27 PST
To: Cypherpunks          <cypherpunks@toad.com>
Subject: Re: public servant privacy
Message-ID: <TsayXB2w165w@spectrx.saigon.com>
MIME-Version: 1.0
Content-Type: text/plain


My friend Dave del Torto said recently:
 
    Tim May notes (appropriately) that:
    >>Strong crypto means even Ollie North can fully protect his
    >>records.
 
    Yes, but shouldn't he be _required_ to "open" his files if he is
    under criminal investigation just like a drug-dealer who's
    required to open the locked trunk of his car?
 
Actually, the drug dealer is *not* required to open his locked car
trunk.  But he might as well, otherwise the police (with search
warrent) will force it open, probably causing some damage which they
will not pay to repair.
 
There doesn't seem to be any practical way to "force open" a
(strongly) encrypted message without the key.  Failure to produce the
key when ordered might be an excuse for firing a govt. employee, but
it can't be the basis for a criminal prosecution (5th Amendment).
 
"Murdering Thug" further commented:
 
    Well, there are really two conflicting issues here:
 
    1) The Fifth Amendment - the right not to testify against
       yourself, hence the Miranda warning when you're arrested.  You
       can claim that being forced to decrypt your hard disk by the
       cops violates your Fifth Amendment rights, and refuse to
       decrypt it.
 
    2) Obstruction of Justice - by not handing over the key to your
       hard disk, you may be obstructing an investigation.  By not
       decrypting your hard disk under court order, you maybe be held
       in contempt of court.
 
 
    Number 2 may work for law enforcement if they are investigation a
    third party and ask to see your hard disk in order to help their
    investigation.  A good example is an Internet site that is being
    used as a telnet launch-pad by some hacker.  If that site refuses
    to cooperate and keeps their files encrypted, the police/court may
    charge you with obstruction of justice or contempt of court.
    HOWEVER, if you feel that by decrypting these files, you would be
    providing testimony/evidence against yourself, you can plead the
    5th, and tell them to go screw themselves.
 
Pleading the 5th will fail if you are offered *immunity* from
prosecution for anything you reveal (as Ollie North was, recall, for
his testimony before Congress). If you still don't want to testify (to
avoid providing damaging evidence against your friends, for example)
your next line of defense is "I forget".  Very hard for the prosecutor
to prove beyond reasonable doubt that you really remember that secret
key.

--
edgar@spectrx.saigon.com (Edgar W. Swank)
SPECTROX SYSTEMS +1.408.252.1005  Silicon Valley, Ca