From: Black Unicorn <unicorn@schloss.li>
Date: Sat, 9 Dec 95 22:53:53 PST
To: Brian Davis <bdavis@thepoint.net>
Subject: Re: Is there a lawyer in the house?
In-Reply-To: <Pine.BSF.3.91.951210012418.18670C-100000@mercury.thepoint.net>
Message-ID: <Pine.SUN.3.91.951210013333.3178A-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Sun, 10 Dec 1995, Brian Davis wrote:

> On Fri, 8 Dec 1995, Black Unicorn wrote:
> 
> > On Thu, 7 Dec 1995, Jeff Weinstein wrote:
> > 
> > > Black Unicorn wrote:
> > > > 
> > > > On Thu, 7 Dec 1995, sameer wrote:
> > > > 
> > >   How about if Bob had a contractual agreement with Alice to keep his
> > > key secret?
> > 
> > Then as a defense attorney, I would argue that Bob had an obvious 
> > expectation of privacy with Alice, and that the fact that he relayed this 
> > key to Alice only under those circumstances represents a definite 
> > expression of his intent to keep the key private, thus triggering 4th 
> > amendment protections.  My view is that this would be a very strong
> > argument.
> 
> Bob's Fourth Amendment rights are not triggered by his contract with 
> Alice.  Alice can be compelled to give up the key (by testimony or 
> production) and giving up that key does not tend to incriminate *Alice* 
> in a violation of law.  Alice can't invoke Bob's rights against 
> self-incrimination for obvious reasons:  Alice isn't Bob.
> ^^^^

You've taken the narrow answer I was trying to give out of context.
As for fifth amendment questions, That's another discussion entirely.  If 
this was not an error, then you have still taken the question way beyond the
narrow scope I was addressing.

I was answering only as to how the manifestation of Bob's privacy
interest might impact the argument that the key was no longer a protected 
interest acording to the Smith v. Maryland ruling, and thus unprotected 
by the fourth amendment on those grounds.  (Assuming it would even be
applied to the Bob - Alice relationship in terms of crypto keys).

Your statement "Bob's Fourth Amendment rights are not triggered by his 
contract with Alice."  Is probably correct in the event the key is 
obtained from Alice.  It may not be if the key is obtained by electronic 
measures or otherwise without a warrant and then the argument is made 
after the fact that Bob has exerted no expectation of privacy over the 
key.  This is the key question which bears on the key escrow's 
effect on Bob's protection (Alice in that example being the escrow 
agent).  Clearly Alice in that circumstance is unlikely to give up the 
key without a warrant.  The real worry is that the authorities are given 
free reign to obtain the key by other methods from Bob, or Bob's 
communications without a warrant by the mere fact that Bob has "tendered" 
the information to Alice (the escrow agent).

Again, I'm addressing the narrow issue of voluntary surrendering of key 
information to an escrow agent and it's effect on the 'third party' 
rule in Smith v. Maryland, not the eventual outcome of an exclusionary 
hearing.

> EBD 
> 
> Not a lawyer on the Net, although I play one in real life.
> **********************************************************
> Flame away! I get treated worse in person every day!!

---
My prefered and soon to be permanent e-mail address: unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information