From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 27 Mar 1996 03:35:12 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: So, what crypto legislation (if any) is necessary?
In-Reply-To: <m0u1NSG-00093TC@pacifier.com>
Message-ID: <Pine.SUN.3.91.960326055002.28374B-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Mon, 25 Mar 1996, jim bell wrote:

> 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.

You're talking about the 6th amendment confrontation clause.  Really, 
that's unrelated to requests for production of documents via the 
subpoena process, which is more related to the due process clause.

Like I said in a related message, I have seen fines of $75,000 a day leveled 
against "bad faith" third parties for not complying with grand jury 
subpoenas for documents.

 
> 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.

Unfortunately, this is incorrect.  Subpoena power is immensely potent in 
the United States, and is arguably the most violent extraterratorial 
exercise of American sovreignty there is.

> >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.  

It's no different than a safety deposit box.  The bank is hardly going to 
endure prosecution and significant for withholding lawful access to a 
defendant's safety deposit box.
 
> 
> >>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.

And Ohio never joined the union and thus is a tax haven, yadda, yadda, yadda.

Please.

They are as "subpoena-able" as the escrow agent is unwilling to bear the 
burden of multi-million dollar fines and the defendant unwilling to bear 
the burden of incarceration.

You know, I didn't know who was writing this message until I got down 
here and my screen scrolled, but I had my suspicions.
 
> Jim Bell
> jimbell@pacifier.com

---
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