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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