From: "Deranged Mutant" <WlkngOwl@UNiX.asb.com>
Date: Mon, 11 Mar 1996 09:08:02 +0800
To: "Vladimir Z. Nuri" <vznuri@netcom.com>
Subject: Re: rhetorical trickery
Message-ID: <199603110043.TAA19252@UNiX.asb.com>
MIME-Version: 1.0
Content-Type: text/plain


> all my respondents seem to be missing some basic points I have been
> trying to make about law enforcement in the US.
> 
> the law runs on proof, and evidence. a file with the name "diary.pgp"
> is not incriminating. it is not evidence. no one could be prosecuted
> as a criminal for having a diary. there is the presumption of innocence
> unless there is evidence and proof to the contrary. 

A diary isn't illegal... but if you are suspected or even convicted 
of a crime, and there's reason to believe that a book or computer 
file is a diary and that you wrote about more crimes in the diary, 
then it's worth investigating.

Just as if one is suspected of money laundering and it is known that 
that person has Swiss or Cayman Island bank accounts... having them 
doesn't mean one is guilty, but if there is other evidence that the 
crime took place then they are well within the realm of 
investigating.

> furthermore, suppose
> the "pedophile" is actually prosecuted successfully. does that mean
> the diary was incriminating? no, it does not. in the CA case it happened
[..]

No. It's just another area of potential evidence.

> that the pedophile was prosecuted without decrypting the diary. which
> in fact argues in favor of the side that says, "cryptography is not
> the end of law enforcement, and this case proves it."

One can argue that, yes. In fact I remember some LE type who was 
pro-crypto who insisted the DT Bill was for lazy cops who didn't want 
to do the footwork necessary for an investigation.

Another is when they cited the World Trade Ctr bombing... seems they 
already had a handle that it was in the works and did nothing anyway. 
DT or a crypto-ban or GAK would not have prevented that.

[..]
> now, a person might be successfully prosecuted for obstruction of
> justice, or contempt of court, in refusing to hand over the 
> decrypted diary (but the other post I made about giving the federal
> agents a key that decrypts the file to a cookie recipe handles this
> quite nicely).

And in some ways one has less rights when in contempt of court then 
when convicted of a felony....

[..]
> please, will people stop sending me responses like the above? do you
> understand how the American legal system works? a person cannot
> be prosecuted without evidence. evidence cannot be illegally obtained.
[..]

Ideally, that is how the system works.  But if they have a good 
reason to suspect something is evidence (and in the above pedaphile 
ase a file named "diary.pgp" would probably qualify) a warrant can be 
obtained.

Note that just having PGP-encrypted files would not necessarily be 
evidence either.  They pointed out a specific file with specific 
reasons why it should be examined.

> a person is not required to testify against oneself.  these are all
> basic long-established cornerstones of our legal system.

It's not clear in terms of court rulings whether handing over 
decryption keys is self-incrimination or not.  From what I have 
heard, the courts do not view safe combinations as 
self-incriminating...

> look, if someone WANTS to be put in jail for having encrypted files,
> I'm sure you can probably figure out some way to pull it off. but
> if you don't act like an idiot, such a thing is highly unlikely. it
> clearly has not happened to date.

Doesn't mean it won't...

[..]
> such deep fear around here about life in the US today? I'd say 
> that people here are high up on the list of creating the paranoia.
> be careful what you fear, you might get it.

Good point indeed. "We have nothing to fear but fear itself." (Flames 
for an FDR quote from raving anti-socialists will be bounced to 
/dev/null.)




 
Rob. 

---
Send a blank message with the subject "send pgp-key" (not in
quotes) to <WlkngOwl@unix.asb.com> for a copy of my PGP key.