From: Brian Davis <bdavis@thepoint.net>
Date: Sun, 10 Dec 95 13:50:45 PST
To: Ed Carp <ecarp@netcom.com>
Subject: Re: GAK and self-incrimination?
In-Reply-To: <199512101959.NAA14976@khijol>
Message-ID: <Pine.BSF.3.91.951210164405.3557F-100000@mercury.thepoint.net>
MIME-Version: 1.0
Content-Type: text/plain


On Sun, 10 Dec 1995, Ed Carp wrote:

> > Date:          Sun, 10 Dec 1995 02:57:36 -0800
> > To:            cypherpunks@toad.com
> > From:          Greg Broiles <gbroiles@darkwing.uoregon.edu>
> > Subject:       Re: GAK and self-incrimination?
> > Cc:            tcmay@got.net
> 
> > 
> > Tim May writes:
> > 
> > >Consider this hypo: I send an encrypted message to a partner in crime
> > >containing plans for future crimes and descriptions of past crimes. I don't
> > >GAK the message. The government prosecutes me under the Anti-Terrorism and
> > >Child Protection Act of 1997.
> > >
> > >My defense? That GAKKing the message would be tantamount to incriminating
> > >myself, which the Fifth Amendment protects me against.      
> > 
> > The Fifth protects you against *compelled* self-incrimination - in
> > particular, the right to be free from the "cruel trilemma" of
> > 
> >         o       conviction of a substantive crime, based on your
> >                 (true) testimony
> >         o       conviction of perjury, for lying when asked to incriminate
> >                 yourself
> >         o       contempt of court sanctions, for refusing to answer
> > 
> > but your hypo doesn't seem to create that forbidden situation. In
> > particular, you're free to simply not send the message at all. 
> 
> I don't believe that that would be a consideration.  Wasn't there a 
> court case a few years ago, in which a convicted criminal sued the 
> government, charging that filling out one of those forms that you 
> have to fill out when you buy a gun was a violation of his 5th 
> amendment rights?  What ever happened to that case?

I think you are referring to the so-called "exculpatory no" exception, 
which says that it is not a crime to say no on a government form when 
saying yes would admit a crime.

That exception has been given some validity in some Circuit Courts of 
Appeal, but not in the Sixth Circuit where I practice.  Perhaps others 
can comment on the Ninth Circuit, et al.  If the issue has made it to the 
Supreme Court, I'm unaware of it (although I'd almost certainly know if the 
doctrine was accepted by the Court and the Sixth Circuit therefore 
overruled...)

Morale:  It may still be important *where* you are, ahem, less than 
completely forthcoming.


EBD

 
> I also think that, besides the obvious 5th amendment problems, there 
> would be a 1st amendment problem - if you "*had* to use GAK to 
> communicate, that would be an impermissible restriction on your 1st 
> amendment rights.
> 

Not a lawyer on the Net, although I play one in real life.
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