From: tcmay@got.net (Timothy C. May)
Date: Fri, 8 Dec 95 09:56:40 PST
To: cypherpunks@toad.com
Subject: GAK and Self-Incrimination?
Message-ID: <acedb98c0d0210046493@[205.199.118.202]>
MIME-Version: 1.0
Content-Type: text/plain



Duncan Frissell wrote:

>At 09:17 AM 12/8/95 -0500, Adam Shostack wrote:
>
>>       "Your honor, we argue that in escrowing his keys with the US
>>government, the defendant should have known his communications could
>>be listened to, and thus has no expectation of privacy."
>
>If Clipper were mandated you might be able to resist a prosecution for
>"failure to file" keys or for double encrypting your transmissions if you
>could prove that you were transmitting illegal messages or evidence of a
>crime.  Just as those who possess illegal weapons are not required to
>register them (self incrimination).  You have to be sure your traffic is
>illegal though otherwise no protection.

Though I'm usually not too interested in smart-ass, overly cute,
interpretations of legal loopholes--having been burned by the tax protestor
arguments that the tax system is invalid because of definitions of money or
that Ohio never entered the Union legally, or somesuch--this whole escrow
thing has got me thinking.

Given that GAK means one never knows if the government is listening, could
a person claim protection against self-incrimination as a reason to not use
GAK, and get away with it? (This is different from the phone system, which
may also be tapped. The analogy would be the same if the government forced
one to pick a telephone it could tap over one it could not, which so far
has not been the case, but which soon may be if switching systems which are
not compliant with Digital Telephony Act provisions are shut down.)

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 government might claim that this "tantamount" conclusion is specious,
that only with a valid court order could they open my traffic. I would
claim that this is suspect, citing the secret court (FISA) provisions, the
possible back doors in GAK (64 bits known to be breakable, according to
Clint Brooks of the government), and the general confusion about whether
opening one message exposes past traffic to reading. I think my lawyers
could make a convincing case that GAK will mean my words may be read by the
government, via multiple options.)

Comments?

--Tim May

Views here are not the views of my Internet Service Provider or Government.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
Corralitos, CA              | knowledge, reputations, information markets,
Higher Power: 2^756839      | black markets, collapse of governments.
"National borders are just speed bumps on the information superhighway."