From: Mike Godwin <mnemonic@eff.org>
Date: Thu, 17 Jun 93 13:07:56 PDT
To: cypherpunks@toad.com
Subject: Contempt of court
Message-ID: <199306172008.AA00361@eff.org>
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Date: Thu, 17 Jun 1993 16:05:38 -0400
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While talking to RoseBud.EE.UH.EDU:
>>> RCPT To:<nobody@rosebud.ee.uh.edu>
<<< 550 <nobody@rosebud.ee.uh.edu>... User unknown
550 nobody@rosebud.ee.uh.edu... User unknown

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From: Mike Godwin <mnemonic>
Message-Id: <199306172005.AA00334@eff.org>
Subject: Re: Contempt of court
To: nobody@rosebud.ee.uh.edu
Date: Thu, 17 Jun 1993 16:05:37 -0400 (EDT)
In-Reply-To: <9306171750.AA02648@toad.com> from "nobody@rosebud.ee.uh.edu" at Jun 17, 93 12:52:05 pm
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nobody writes:

> People should not be able to be forced by a subpoena duces tecum to provide
> incriminating documents.  The fifth amendment protection against self-
> incrimination normally extends to personal papers.  There are cases
> which show that corporate officers cannot avoid turning over corporate
> papers even if they incriminate themselves, but personal papers are
> provided much wider protection.
 
This is true, but it's not precisely the issue with regard to encryption
keys.

> But none of these involve giving testimony against themselves.  Producing
> a personal diary or notes which provide incriminating testimony should
> be protected by the fifth amendment.
 
Providing the key would not be seen as legally identical to providing
the unencrypted document.

> By this reasoning, someone may be able to be forced to reveal an encryption
> key, since that is not testimony.  But if the resulting documents, when
> decrypted, are personal and contain damaging, incriminating statements,
> they would not be usable in court.  To introduce them in court against
> the wishes of the defendant would be a clear violation of his fifth
> amendment rights.

Unfortunately, this has not been Fifth Amendment law for a long time.
If a search and seizure takes place at your house, and the investigating
agents find your diary, they can use it against you. If the diary is
in code, they can attempt to decode it.



--Mike