From: Greg Broiles <gbroiles@darkwing.uoregon.edu>
Date: Sun, 10 Dec 95 14:54:15 PST
To: ecarp@netcom.com
Subject: Re: GAK and self-incrimination?
Message-ID: <199512102233.AA10816@ideath.goldenbear.com>
MIME-Version: 1.0
Content-Type: text/plain


Ed Carp writes:
> Greg Broiles writes:
>> 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, 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?

This sounds like _Haynes v. United States_ 390 US 85 (1968); the Supreme
Court ruled that requiring registration of particular weapons (possession of
which was illegal) violated the Fifth Amendment. The difference between
_Haynes_ (and _Albertson v. Subversive Activities Control Board_ 382 US 70
(1965)) and Tim's hypo is that Tim's hypo doesn't force only guilty people
to provide information, it requires all people using crypto to do so - so
it's not targeted at "persons inherently suspect of criminal activities"
(see _Haynes_ at 96, _Anderson at 79), and it doesn't necessarily give rise
to "real and appreciable hazards of incrimination" (_Haynes_ at 97).

But it seems to me that the real bottom line is that the information which
is compelled is not incriminating, and the information which is
incriminating is not compelled. The keys to my crypto might lead to
incriminating evidence, or they might prove to be useful in a prosecution,
but they're not in themselves any sort of a signal that a crime has been or
will be committed.

I think it's a different argument - and probably even comes out the other
way - if the command to reveal a key is made to a particular individual in
circumstances where possession/knowledge of the key is likely to implicate
the holder in criminal activity. If the police find an encrypted disk which
is labelled "The Story of How I Killed Jimmy Hoffa and Where I Put His Body
and the Murder Weapon", compelling someone to reveal the key which decrypts
the file(s) on that disk seems incriminating, even if the information
produced (the string of binary digits which is the key) isn't by itself
incriminating.

Is it "self-incrimination" to require people to provide the government with
an address when they register a car, even though the police may use that
address to look for evidence if you're suspected of a crime? Is it
"self-incrimination" to require drivers involved in an auto accident to
remain at the scene and provide a name and address to cops or other drivers?
(Supreme Court says no self-incrim re hit & run statute, _California v.
Byers_, 402 US 424 (1971).) (Now, if the government required people who
weren't using GAK to provide a "Statement of Refusal to Comply with GAK", I
think it'd be a different kettle of fish entirely.) 

I'm not trying to say that I think GAK is good - I think it's awful. But I
don't think it's incompatible with the way that the Fifth amendment has been
interpreted over the past 200 years. I think it's possible to ignore those
interpretations and make up your own, but I don't think that's of much
practical utility where the dominant local gang doesn't find your theory
plausible or expedient. So much for the rule of law.

>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.                       

I agree with you re the First amendment.
--
"The anchored mind screwed into me by the psycho-    Greg Broiles
lubricious thrust of heaven is the one that thinks   
every temptation, every desire, every inhibition."   greg@goldenbear.com
	-- Antonin Artaud		   gbroiles@darkwing.uoregon.edu