From: Jim choate <ravage@wixer.bga.com>
Date: Thu, 23 Dec 93 20:16:08 PST
To: ferguson@icm1.icp.net (Paul Ferguson x2044)
Subject: Re: Encryption and Self-Incrimination
In-Reply-To: <9312231925.AA28908@icm1.icp.net>
Message-ID: <9312240357.AA05122@wixer>
MIME-Version: 1.0
Content-Type: text/plain


>
>
> You wrote -
>
> > Consider this,
> >
> > in a criminal investigation you can be forced to allow access to safety
> > deposit boxes and their contents, how is this any different?
>
> I think the key here is that there has to be some valid supposition
> of a criminal act before this can happen. In other words, Officer
> George G. Prick at local precinct house 5 can't simply compel you
> to provide access to this type of material on a whim. Do you see
> my point?
>
> -- Paul
>

I see it fully, unfortunately it isn't the point I am trying to make. What I
am trying to ask is what happens when a officer tells a judge something like
the following,

Officer: "Your Honor, we stopped the suspect and he had cocaine and this
          computer in the car. We suspect he has drug trafficing related
          data on the drive. Our technical people have determined that the
          drive is encrypted."

Judge: "Did the accused turn over the key when requested?"

Officer: "No sir, he says that it would be self-incriminating."

Judge:   (this is the point at which I am addressing.)

Exactly what can the judge do at this point? As I understand the situation
right now there is no legal precidence that requires the suspect to turn over
the key. However, since there is clearly evidence for suspicion the court has
a responsibility to its office to gain access to that drive in any legal
means possible.  The courst is prohibited from 'forcing' the suspect to
reveal the key thanks to the 5th. So the judge (to my admittedly laymen view)
has only one thing to do, order the accused to turn the key over or go to
jail for contempt of court. Hence, the suspect goes to jail for contempt and
stays there until either the original judge decides it ain't worth further
trouble or a higher court over rules the lower court and releases you (I
wouldn't hold my breath for the latter to happen in most cases). In short you
could spend years in jail without ever actually going to trial. The end
result is the same, you spend years in jail (possibly).. In short having a
the drive crypto does only one thing and that is protect you from the
original charge (assuming all incriminating evidence exists only on the drive)
it does not in any way protect you from spending time in jail. I fail to see
how the court could do much else...So the conclusion that I come to is that
the contents of the drive would have to merit a sentence more aggregious than
a decade or two in jail.