From: Black Unicorn <unicorn@schloss.li>
Date: Sun, 7 Apr 1996 06:44:58 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: "Contempt" charges likely to increase
In-Reply-To: <ad8a9f931d0210045564@[205.199.118.202]>
Message-ID: <Pine.SUN.3.91.960406130905.2832D-100000@polaris.mindport.net>
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On Fri, 5 Apr 1996, 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.

I'm not sure an appeals court will be particularly receptive to this 
argument.  I'll do a little research on the issue next week but I suspect 
that appeals courts will be reluctant to overturn contempt charges on 
this basis.  Firstly, appeals courts generally do not do their own 
findings of fact, but take the lower courts findings for granted.  
Secondly, in the absence of serious error, higher courts are unlikely to 
give their fellows a hard time.  The culture of the jurist as it 
were.

In the case where one appeals on the basis that the data cannot be retrieved 
because of cryptographic protections, an appeals court is unlikely to 
disturb the lower courts implicit finding that the data is recoverable.  
"Why would our esteemed member of the bench below impose such sanctions 
if he did not believe they might shake loose the very evidence he seeks?"

Not impossible that it would come out the other way, but I suspect it 
would have to be a really obvious error on the part of the court below.

I might add that the Cayman Islands are full of trust companies with 
provisions which forbid the disclosure of data to a client who is 
coerced.  A law on the books refuses to recognize "consent" orders made 
under judicial compulsion.  This would give the appearance of total 
unavailability of evidence and suggest the futility of contempt 
charges.  Yet courts have still, and with no small measure of success, 
imposed sanctions on witnesses so protected.

> 
> Legal students out there might find that specializing in this area of law
> brings in more clients in the coming decades.
> 
> --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."

---
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"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
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