From: jim bell <jimbell@pacifier.com>
Date: Tue, 26 Mar 1996 22:12:52 +0800
To: cypherpunks@toad.com
Subject: Re: So, what crypto legislation (if any) is necessary?
Message-ID: <m0u1NSG-00093TC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 12:23 PM 3/25/96 -0800, Timothy C. May wrote:

>I don't see any compelling need for U.S. legislation. And given the
>pressures to attach all sorts of language to bills, I think it best that no
>legislation happen.

[stuff deleted]

>IMPORTANT NOTE: It is often said, in a correct interpretation I think, that
>a third party holding a key (Joe's Key Warehouse) is _not_ covered by the
>5th Amendment's protections against self-incrimination, and so must honor a
>subpoena. Sounds accurate to me. 

While this may end up looking like another of Jim Bell's odd 
interpretations, the only section in the US Constitution that I see as 
potentially REQUIRING a person's testimony is the section (can't recall 
which) which says that a defendant must have a process to compel the 
appearance of witnesses in his favor.  The Constitution, as far as I see, 
says nothing about requiring people to appear for the PROSECUTION.

I know that plenty of judges just automatically assume that this requirement 
is somehow in there, but a literal reading of the Constitution doesn't 
provide it.  If that's the case, the government has and should have no 
mechanism to force any key escrow agent to reveal a key.


>However, what if Joe is _also_ one's
>lawyer? Does attorney-client privilege apply here? Perhaps. A better
>solution is also fully legal at this time: use only offshore key storage. A
>U.S. subpoena to Vince's Offshore Key Repository will carry no weight in
>Anguilla. (Can I be compelled to ask Vince to send my key? Sure. But Vince
>and I could have a stipulation that such "duress requests" will not be
>honored, no matter how loudly I squawk.)

I've always been astonished at the assumption that the government seems to 
be making that key escrow (which is fundamentally done for the benefit of 
the key holder) will be implemented in a way that could possibly help the 
cops out, in a way done to the detriment of the key holder.  



>>I do feel that it should be possible for courts to sub poena crypto keys,
>>but that doesn't really need new law either (4th and 5th ammendments
>>become _really_ important though (hmmm- there advantages to writing down a
>>constitution after all :)
>
>I agree that subpoenas for keys are legit. While I may dislike giving up my
>key, in a criminal matter it seems like "just another document." If they
>can subpoena my diary, my phone records, my dentist bills, why not another
>this document? Nothing in the Constitution giving it special status.

But are subpoenas _really_ constitutional?  In any case, one of the effects 
of the widespread availability of good encryption might be that suddenly the 
documents that cops have historically thought were subpoena-able will no 
longer be.  That's life, although they won't like it.

Jim Bell
jimbell@pacifier.com