At 6:19 PM 4/6/96, Black Unicorn wrote:
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.
Well, I think this will be a matter of time and education. The courts have not yet been presented with what we might call "unbreakable protocols" for the holding of information. Existing secret holding "arrangements" (I'll call them "arrangements" to make their informal, human-mediated nature more clear) have typically involved secrets (information, money, etc.) held by some other party subject to recall/retrieval by some form of instructions from the owner/depositor. The canonical example being a Swiss bank account, with the bank responding when the proper numbers or signatures or whatever are presented. (Things may have changed as the Swiss banks have become more compliant with U.S. demands, but the example still stands.) This model, is, I contend, the model with which courts are familiar. They know that Alice can retrieve the funds, so they simply order her to. If she does not comply, contempt of court. Q.E.D. What of a different model? What if, say, her funds are in a "time lock deposit," with the bank unwilling or even unable (cryptographic protocols involving multiple key holders) to retrieve the funds until, say, 2010? Even if she is being tortured to death and pleading with the Gemeinschaftbank of Zurich to please, pretty please, release her funds, they cannot. It may take some convincing, and some education of the court (a la the education that is slowly happening, as in the CDA case), but eventually it will be realized that "contempt of court" is not applicable. (The angle may be felonize the use of such "unbreakable" protocols, but this is part of a larger story....)
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.
I haven't studied such cases, but my hunch (SWAG) is that their are "leaks" in such offshore deposits, that the courts have actually had some measure of success in getting the funds that are reputed to be irretrievable. In any case, if and when the jails fill up with up with people who _cannot_ comply with a court order, something will change. (Note that I've never claimed such "unbreakable protocols" will become the norm. Many of us, myself included, would rather have a way to pay off the government to settle some tax evasion charge, or whatever, than sit in jail for an unlimited time because we absolutely cannot retrieve the funds....) --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."