From: rschlafly@attmail.com (Roger  Schlafly)
Date: Sat, 20 Apr 1996 10:15:38 +0800
To: tcmay@got.net
Subject: 5th protect password?
Message-ID: <rschlafly1102233230>
MIME-Version: 1.0
Content-Type: text/plain



>> From: Hal <hfinney@shell.portal.com>
>> I have been quite appalled to read the various analyses on the net (URLs
>> not handy, but they have been posted here before I think) which conclude
>> that compelled disclosure of a cryptographic pass phrase would probably
>> be OK despite the Fifth Amendment.  This seems to be an area where there
>> is widespread agreement based on recent precedent.

>> from: --Tim May
>> What about the Fifth Amendment? Scholars are addressing this issue of
>> compelled disclosure of cryptographic keys. Note, of course, that diaries,
>> business records, papers, and, indeed, the entire contents of a putative
>> crime scene are accessible to crime investigators and the legal system.
>> (Whether giving up a key constitutes "testifying against one's self" or not
>> is undecided, so far as I know. My own inclination is that it will be
>> decided to be no different than the key to a locked diary--by itself, it is
>> not self-incrimination.)

Is this really an issue?  I am not an expert, but I just read a
Supreme Court case:

   DOE v. United States, 487 U.S. 201; 108 S. Ct. 2341 (1988)

It involved someone who was ordered by the court to consent to the
Cayman Islands bank to turn over account records.  The Supreme
Court said yes, because it is "more like 'be[ing] forced to
surrender a key to a strongbox containing incriminating documents'
than it is like 'be[ing] compelled to reveal the combination to
[petitioner's] wall safe.'"

The quote refers to Stevens' dissent, which said:

   A defendant can be compelled to produce material evidence that
   is incriminating.  Fingerprints, blood samples, voice
   exemplars, handwriting specimens, or other items of physical
   evidence may be extracted from a defendant against his will.
   But can he be compelled to use his mind to assist the
   prosecution in convicting him of a crime?  I think not.  He may
   in some cases be forced to surrender a key to a strongbox
   containing incriminating documents, but I do not believe he can
   be compelled to reveal the combination to his wall safe -- by
   word or deed.

I conclude that in a criminal case, all of the supreme court
justices agree that a criminal defendant cannot be forced to
reveal the combination to a wall safe, or any other information in
his mind, by the Fifth Amendment.

An escrow agent can presumably be compelled, unless his is accused
of a crime, or has a privilege, or is outside jurisdiction.
Interestingly, a footnote in the above case said:

   The Government of the Cayman Islands maintains that a compelled
   consent, such as the one at issue in this case, is not
   sufficient to authorize the release of confidential financial
   records protected by Cayman law.

Sounds like the Cayman Islands might be a good place for your key
escrow agents.

Roger Schlafly