From: "Ed Carp" <ecarp@netcom.com>
Date: Sun, 10 Dec 95 10:57:49 PST
To: Greg Broiles <cypherpunks@toad.com
Subject: Re: GAK and self-incrimination?
Message-ID: <199512101959.NAA14976@khijol>
MIME-Version: 1.0
Content-Type: text/plain


> 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 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.