From: Marc Horowitz <marc@GZA.COM>
Date: Mon, 14 Jun 93 10:43:25 PDT
To: Mike Godwin <mnemonic@eff.org>
Subject: Re: DH for email (re: email protection and privacy)
In-Reply-To: <199306141623.AA01688@eff.org>
Message-ID: <9306141743.AA01676@dun-dun-noodles.aktis.com>
MIME-Version: 1.0
Content-Type: text/plain


>> Note that a court could cite you for contempt for not complying 
>> with a subpoena duces tecum (a subpoena requiring you to produce objects 
>> or documents) if you fail to turn over subpoenaed backups.

This is gonna sounds weird, but....

Let's say I have a (paper) document which explains how I (for example)
embezzled money from Megacorp, Inc.  I presume that the Fifth
Amendment means I cannot be forced to produce this document.

Case 1: let's say that I have the same document on disk, in the clear.
Can they force me to produce that?

Case 2: They sieze a disk from an associate which has the document,
but it's encrypted.  Can they force me to produce the key?  Mike, you
claim that there is precedent which says that they can.  I'm curious
how the Fifth Amendment allows this.  I've heard you say in the past
that key escrow doesn't violate the 5th because you're not disclosing
anything at the time.  But if the government possesses an
incriminating document, wouldn't forcing me to give them the key
constitute self-incrimination?

Case 3: I keep all my stuff encrypted, and enter the key from (say) a
smartcard of some sort when I boot up.  They seize my machine, and
insist that I give them the key.  I refuse, because the key is stored
in a cleartext document, which incriminates me in some way.  (Say the
key is a hash of the document itself.)  Since I'm sure there's no
precedent for this, what are the legal implications of seizing this
document?

Case 4: "I forgot."  Can they do anything?

		Marc