From: Black Unicorn <unicorn@schloss.li>
Date: Sun, 7 Apr 1996 07:01:03 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: "Contempt" charges likely to increase
In-Reply-To: <ad8b1bc71f02100483ae@[205.199.118.202]>
Message-ID: <Pine.SUN.3.91.960406123254.2832B-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 5 Apr 1996, Timothy C. May wrote:

> At 9:26 PM 4/5/96, Bill Frantz wrote:
> >At 11:57 AM 4/5/96 -0800, Timothy C. May wrote:
> >
> >>If the secrets or assets _cannot_ be retrieved--a scenario which is
> >>possible, if the protocol is so written (clauses for court action)--then
> >>contempt charges are meaningless and would not stand, IMNALO.
> >
> >The Black Unicorn indicates that if the reason the secrets _cannot_ be
> >retrieved is because they are in a jurisdiction which refuses to reveal
> >them when the owner is under compulsion, the owner can still be punished
> >for contempt (A contractual situation).
> 
> Far be it from me to question the legal advice BU/Uni/Dirsec provides,

Unicorn is fine, don't be snide.

I don't provide legal "advice" on the list.

> but
> I think all contempt charges have a kind of eventual expiration. That is,
> after some number of months or years have passed and it becomes apparent
> the incarcerated person simply will not or cannot comply, release is
> ordered. It has happened in most cases of reporters, and it happened with
> Rebecca Morgan (who never did tell the court where her daughter was, though
> it later came out that her daughter was probably in Australia with
> grandparents).

If you mean, as I believe you do, that there is or can be a manner of 
"unofficial" expiration, I am in agreement with you.

> 
> Jail term for contempt of court has certain resemblances to trial by
> ordeal: if after some period of time of ordeal one has not talked, the
> ordeal is over.

This is about exactly correct.  While occassionally actual sentences are 
passed down, this is rare and contempt generally falls into the bucket of 
"until the witness becomes more cooperative."

> 
> If the court is shown that the protocol makes it impossible for the person
> to retrieve the material, especially that there are no ways to circumvent
> the contract, then the court may still jail the person for a while "just to
> make sure" that there is no means of circumventing it. If and when it
> becomes apparent to even the most skeptical that the material has been
> lost, or is unretrievable, then I think the contempt jailing must end. When
> nothing is served by furhter jailing, except punishment, then the reason
> for the contempt action is ended. Or so it seems to me, from what I've
> osmosed about the law.

The above is essentially correct.  The variable of the most consequence 
in such cases is the judge however.  One must convince the judge that no 
further incarceration will prove effective.  A witness' attorney could 
make showings to the court until he was blue in the face about the 
unavailability of the data because of cryptographic protocol.  He could 
even be right, but unless he convinces the judge, the witness is still 
going to be subject to the whims (yes, Mr. Bell, I do mean whims) of the 
judge.  Appealing contempt orders can be frustrating.  Most jurisdictions 
I've worked in use the "clear error" standard, which is difficult 
enough to beat in itself, and nearly impossible when the subject of the 
ruling before an appeals court is a fellow member of the bench.

To me this entire thread has threatened to suggest to people that they 
need only thumb their noses at the authorities, be it by cryptographic 
protocol or otherwise, and sit back in their easy chair and smile to 
themselves.  Practically speaking security is a self assured right in 
this regard.  Depending on anyone, be it your ISP, your attorney, or the 
constitution, is a foolish measure.  Mr. Parekh hit the nail on the 
head.  No ISP in its right mind is going to ask for trouble.  If I'm a 
prosecutor and I suspect that the ISP may be complicit in hiding 
evidence, I'm going to ask for a search and seizure warrant (a la sun 
devil) and just walk in and take the equipment I believe the data to be 
on and then satisify myself that it's unattainable.  In effect even some 
kind of insurance pool, or professional group of ISP's will have to 
provide for replacement of seized equipment to effectively prevent harm 
from government intervention.  This gets expensive real fast and as risk 
can only be assessed by the stated policy of the ISP with regard to 
resisting government, it will be the active resisters who find themselves 
with the whopping size premiums.

I understand that direct confrontation with government is appealing to 
the authority hater.  (I happen to be one).  Overt resistance, however, 
of the character suggested by Mr. Bell and others, is going to cause 
problems in two ways.  Firstly, its going to cause the individual 
resister a good deal of headaches.  Secondly, its going to make bad law 
eventually.

The solution is more about protocol than anything else.  

I'll be interested to see what courts come up with when it becomes clear 
that offshore and properly protected data is impossible to obtain with the 
current tools available to the judiciary.  I suspect that if enough big 
cases get stung by the crypto bee, someone is going to try and invent a 
bug lamp.  One need only follow the evoltion of law that followed strict 
banking secrecy in tax evasion to see where that might end up.
 
> --Tim May
> 
> Boycott "Big Brother Inside" software!
> We got computers, we're tapping phone lines, we know that that ain't allowed.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
> tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> Higher Power: 2^756839 - 1  | black markets, collapse of governments.
> "National borders aren't even speed bumps on the information superhighway."
> 
> 
> 
> 
> 

---
My preferred 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