From: Michael Froomkin <froomkin@law.miami.edu>
Date: Tue, 26 Mar 1996 14:35:36 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: So, what crypto legislation (if any) is necessary?
In-Reply-To: <ad7c25ce0402100464ca@[205.199.118.202]>
Message-ID: <Pine.SUN.3.91.960325214107.7695I-100000@viper.law.miami.edu>
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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...

[...]

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.