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