Date: Sun, 10 Dec 1995 02:57:36 -0800 To: cypherpunks@toad.com From: Greg Broiles <gbroiles@darkwing.uoregon.edu> Subject: Re: GAK and self-incrimination? Cc: tcmay@got.net
Tim May writes:
Consider this hypo: I send an encrypted message to a partner in crime containing plans for future crimes and descriptions of past crimes. I don't GAK the message. The government prosecutes me under the Anti-Terrorism and Child Protection Act of 1997.
My defense? That GAKKing the message would be tantamount to incriminating myself, which the Fifth Amendment protects me against.
The Fifth protects you against *compelled* self-incrimination - in particular, the right to be free from the "cruel trilemma" of
o conviction of a substantive crime, based on your (true) testimony o conviction of perjury, for lying when asked to incriminate yourself o contempt of court sanctions, for refusing to answer
but your hypo doesn't seem to create that forbidden situation. In particular, you're free to simply not send the message at all.
I don't believe that that would be a consideration. Wasn't there a court case a few years ago, in which a convicted criminal sued the government, charging that filling out one of those forms that you have to fill out when you buy a gun was a violation of his 5th amendment rights? What ever happened to that case? I also think that, besides the obvious 5th amendment problems, there would be a 1st amendment problem - if you "*had* to use GAK to communicate, that would be an impermissible restriction on your 1st amendment rights.