On Mon, 25 Mar 1996, Michael Froomkin wrote:
On Mon, 25 Mar 1996, Timothy C. May wrote:
[...many things including...]
(Michael Froomkin speculated in one of his articles, I don't recall which, that there might need to be certain guidelines or laws if a key escrow protocol were to invoke the U.S. court system. Maybe. But I think ordinary
It's my clipper article, see the link from my homepage. The claim (disputed, BTW, by many experts) is that it's not obvious that the constitution allows judges to hold keys in the absence of an onging judicial proceeding involving the owner of the key because the separation of powers would classify this action as "executive".
contract law, about what a contract says and what it means, is adequate. If I pay Joe's Key Warehouse a fee to store my key and it loses it, or gives it to another party, then damages can be collected.)
I agree that absent a statute all that is involved is contract law.
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IMPORTANT NOTE: It is often said, in a correct interpretation I think, that a third party holding a key (Joe's Key Warehouse) is _not_ covered by the 5th Amendment's protections against self-incrimination, and so must honor a subpoena. Sounds accurate to me. However, what if Joe is _also_ one's lawyer? Does attorney-client privilege apply here? Perhaps. A better
NO IT DOES NOT. Basic rule of thumb: your lawyer can't be used to hide papers someone else can't hide. Ok, at the margin it gets tricky, but bascially the privilege is not going to stretch to your key.
solution is also fully legal at this time: use only offshore key storage. A U.S. subpoena to Vince's Offshore Key Repository will carry no weight in Anguilla. (Can I be compelled to ask Vince to send my key? Sure. But Vince and I could have a stipulation that such "duress requests" will not be honored, no matter how loudly I squawk.)
An interesting issue, likely to be addressed in future judicial assistence treaties...
Practally speaking, this is incorrect. While most nations complain about the application of U.S. law abroad in discovery, unless the foreign entity has no U.S. presence what so ever, they are highly vulnerable to subpoenas. Either today or tommorow I'll post a massive article on asset protection to the list which discusses many aspects of international subpoena powers and jurisprudence in relation to bank documents, and in some cases, computer disks and information. It may answer this question more completely.
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A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) Associate Professor of Law | U. Miami School of Law | froomkin@law.miami.edu P.O. Box 248087 | http://www.law.miami.edu/~froomkin Coral Gables, FL 33124 USA | It's warm here.
--- My prefered and soon to be permanent e-mail address: unicorn@schloss.li "In fact, had Bancroft not existed, potestas scientiae in usu est Franklin might have had to invent him." in nihilum nil posse reverti 00B9289C28DC0E55 E16D5378B81E1C96 - Finger for Current Key Information