From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 27 Mar 1996 04:06:49 +0800
To: Michael Froomkin <froomkin@law.miami.edu>
Subject: Re: So, what crypto legislation (if any) is necessary?
In-Reply-To: <Pine.SUN.3.91.960325214107.7695I-100000@viper.law.miami.edu>
Message-ID: <Pine.SUN.3.91.960326060016.28374C-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Mon, 25 Mar 1996, Michael Froomkin wrote:

> On Mon, 25 Mar 1996, Timothy C. May wrote:
> 
> [...many things including...]
> > 
> > (Michael Froomkin speculated in one of his articles, I don't recall which,
> > that there might need to be certain guidelines or laws if a key escrow
> > protocol were to invoke the U.S. court system. Maybe. But I think ordinary
> 
> It's my clipper article, see the link from my homepage.  The claim 
> (disputed, BTW, by many experts) is that it's not obvious that the 
> constitution allows judges to hold keys in the absence of an onging 
> judicial proceeding involving the owner of the key because the separation 
> of powers would classify this action as "executive".
> 
> > contract law, about what a contract says and what it means, is adequate. If
> > I pay Joe's Key Warehouse a fee to store my key and it loses it, or gives
> > it to another party, then damages can be collected.)
> > 
> I agree that absent a statute all that is involved is contract law.
> 
> [...]
> 
> > 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. However, what if Joe is _also_ one's
> > lawyer? Does attorney-client privilege apply here? Perhaps. A better
> 
> NO IT DOES NOT.  Basic rule of thumb: your lawyer can't be used to hide 
> papers someone else can't hide.  Ok, at the margin it gets tricky, but 
> bascially the privilege is not going to stretch to your key.
> 
> > 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.)
> 
> An interesting issue, likely to be addressed in future judicial 
> assistence treaties...

Practally speaking, this is incorrect.  While most nations complain about 
the application of U.S. law abroad in discovery, unless the foreign 
entity has no U.S. presence what so ever, they are highly vulnerable to 
subpoenas.

Either today or tommorow I'll post a massive article on asset protection 
to the list which discusses many aspects of international subpoena powers 
and jurisprudence in relation to bank documents, and in some cases, 
computer disks and information.

It may answer this question more completely.

> 
> [...]
> 
> A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
> Associate Professor of Law | 
> U. Miami School of Law     | froomkin@law.miami.edu
> P.O. Box 248087            | http://www.law.miami.edu/~froomkin
> Coral Gables, FL 33124 USA | It's warm here.
> 
> 

---
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