From: Black Unicorn <unicorn@schloss.li>
Date: Mon, 7 Oct 1996 13:45:56 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: legality of wiretapping: a "key" distinction
In-Reply-To: <3.0b28.32.19961006163919.00700398@ricochet.net>
Message-ID: <Pine.SUN.3.94.961006230456.16819A-100000@polaris>
MIME-Version: 1.0
Content-Type: text/plain


On Sun, 6 Oct 1996, Greg Broiles wrote:

> At 08:43 PM 10/5/96 -0700, Detweiler wrote:
> >>"Right to choose to be in contempt of court" ?  If only I could attach a
> >>sound file with my howling laughter to this post.
> >
> >I find it as ludicrous as you do, but it's the clear insinuation
> >suggested by hard-core cypherpunks / anarchists in this forum.
> 
> I wrote something which you might be confusing for this argument; in case
> this is what you mean, I've reproduced it below:
> 
> [originally sent on 9/18/96]
> >There's a world of difference between the government subpoena-ing
> something >from me, where I can delay disclosure until I've exhausted my
> legal avenues >to challenge disclosure, and the government demanding data
> from an at best >disinterested third party who cares not at all if I get my
> day in court >before they disclose. With the second scenario, I'm forced to
> try to >"unring the bell", and somehow limit the spread of otherwise
> >private/confidential data in a community (law enforcement) which is
> >organized to collect and retain information. Ha, ha. Given today's
> Congress >and Supreme Court, there's probably precious little chance that
> keys >disclosed prematurely or erroneously won't be used to collect
> evidence >which will be admissible despite the lack of meaningful
> opportunity to >challenge the "recovery" of a key.
> 
> Also, there is an important difference between making a policy argument or
> expressing a preference, e.g.:
> 
> "I like having a choice between disclosing information which is requested
> and suffering the penalties for contempt of court"
> 
> and an argument about the constitution:
> 
> "The constitution says I must be given a choice between disclosing and
> contempt." 
> 
> I don't remember seeing any examples of the latter come across the list. As
> I remember things, the context of my statement above was a discussion of
> why third-party key escrow is not the same as self-escrow. 

Actually, believe it or not, I may have an obscure one.

Said of those hauled before a court and ordered to disclose secret
banking records, even though doing so will subject them to severe
penalities and even jail time on their return home:

"...the defendant should feel the full measure of each sovereign's
conflicting commands and so choose between laws of those two sovereigns."
Westinghouse Elec. Corp. v. Rio Algom, Ltd., 480 F. Supp. 1138 (N.D. Ill.
1979).

Of course in this case the U.S. measures were rather a bit more dire, but
it does suggest a tacid recognition that there is nothing literally
illegal about being in contempt of court, even if it was an attempt to
resolve a conflict of laws problem in this case.

It's also worth noting that contempt of court is rarely punative in
nature.  (Different rules apply when it is).  Instead, it is coercive.
Force is applied in increasing measures until the individual either gives
into the court demands, or it is clear that force will not be of any
effect.  There is no real law being broken per se, merely an exercise of
power by the court.  If you comply, sanctions will be removed.  The only
sanctions which will be preserved after the fact will be those which were
levied to enforce compliance prior to that compliance.

All this is entirely academic in any event to the original point.  There
is no defined right to be in contempt, only the right of the court to
enforce its rulings and to compell testomony of unwiling witnesses.  The
fact that an act is not illegal does not make it a right.  There is
nothing I see in the constitution to support the argument that it is a
right in any way shape or form to refuse a lawful order of the court.

> --
> Greg Broiles                |  "We pretend to be their friends,
> gbroiles@netbox.com         |   but they fuck with our heads."
> http://www.io.com/~gbroiles |

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li