Re: Is there a lawyer in the house?
At 9:27 PM 12/7/95, cme@acm.org wrote:
It could be even worse. I was on a panel last year with Scott Charney (sp?) (I believe from DoJ) during which he commented that if you give your secret key to anyone -- e.g., your own company -- then you have given up the presumption of privacy. That leaves the police open to get that secret without a warrant. This claim should be checked by a real lawyer.
Huh? You mean if you give me your key the police can get it from me without a warrant? What if I don't want to give it up, and you don't? How would the police get it without a warrant? (And "I" could be your employer, so the point is clear.) And even more strikingly, what if you give your private key to your lawyer for safekeeping? Has attorney-client privilege gone away? (Granted, there are ways to break attorney-client privilege, but these are rare exceptions. In any case, the police could not get the private key without a court order, warrant, whatever.) I can believe that some cases of giving up keys wipes out one's arguments based strictly on "privacy," but not that it wipes out other arguments. It seems to me that if one wants to voluntarily escrow private keys, for safekeeping, one's personal lawyer is a safe bet: it is very difficult to break this kind of attorney-client confidentiality, from what I know of such things. --Tim May Views here are not the views of my Internet Service Provider or Government. ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^756839 | black markets, collapse of governments. "National borders are just speed bumps on the information superhighway."
If Alice gives Bob her key and Bob is not a person with whom Alice has a special relationship of trust (e.g. her lawyer), then Alice has no legal grounds to complain if Bob *voluntarily* gives Carol, a Cop, Alice's key. If Alice gives Bob her key and Bob is not a person with whom Alice has a special relationship of trust (e.g. her lawyer), then Alice has no legal grounds to complain if Carol, a Cop, serves Bob with a valid warrant to seize Alice's key and in fact does so. Furthermore, there are circumstances in some states where even if there is a special relationship of trust Bob either may at his discretion or in some rarer cases may be forced to divulge the key. E.g. to prevent a crime that is about to be committed likely to involve loss of life. 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.
On Thu, 7 Dec 1995, Timothy C. May wrote:
At 9:27 PM 12/7/95, cme@acm.org wrote:
It could be even worse. I was on a panel last year with Scott Charney (sp?) (I believe from DoJ) during which he commented that if you give your secret key to anyone -- e.g., your own company -- then you have given up the presumption of privacy. That leaves the police open to get that secret without a warrant. This claim should be checked by a real lawyer.
Huh?
You mean if you give me your key the police can get it from me without a warrant? What if I don't want to give it up, and you don't? How would the police get it without a warrant?
Yes. Unless it could be shown there their was an expactation of privacy in the transfer, or that there was an understanding that you intended this to be a confidential matter. Or in the alternative, that the relationship between you and the third party is suggestive of such a confidence on its face. Remember this is a ex post ruling. The police will just come in and take the information, you have to fight it AFTER the fact. It sounds fine in e-mail to ask the question "How will they get in" but in real life it becomes a much less realistic proposition.
(And "I" could be your employer, so the point is clear.)
Yes. I have seen holdings which indicate that information given to an employer, where there was no obvious expection that it be kept confidential, estopped 4th amendment protections to its introduction when obtained without a warrant.
And even more strikingly, what if you give your private key to your lawyer for safekeeping? Has attorney-client privilege gone away?
Hardly. See above. It hinges on the nature of the relationship and how it bears on the expectation of privacy. The supreme court has ruled that the relationship with the phone company does not meet such a standard, and one can assume ISP's apply the same way. I could go on spilling out holdings if there is enough interest.
(Granted, there are ways to break attorney-client privilege, but these are rare exceptions. In any case, the police could not get the private key without a court order, warrant, whatever.)
Again, because of the nature of the relationship. There is an expectation that a conversation with an attorney is one of the most private exchanges you can engage in. As for rare exceptions, I'm not so sure I would term them rare.
I can believe that some cases of giving up keys wipes out one's arguments based strictly on "privacy," but not that it wipes out other arguments.
It essentially prevents you from claiming you really had a demonstrated privacy interest in it, unless there are other circumstances to indicate such an interest. Think of the court as saying "How the hell is this private if you told maggy and fred?"
It seems to me that if one wants to voluntarily escrow private keys, for safekeeping, one's personal lawyer is a safe bet: it is very difficult to break this kind of attorney-client confidentiality, from what I know of such things.
I don't know where you came up with the lawyer example. I don't know that anyone was claiming that one could break the attorney client trust on this basis. However, I think, as a tangential matter, a court will examine very closely a claim that keys protected by such a trust can not be used as evidence. To hold this so broadly would be to tell the criminal he merely needs to give the weapon used in a crime to his attorney to prevent its introduction. You also need to make a distinction between a 4th amendment matter (which is the issue at hand) and the seperate and distinct protection of the attorney client relationship. "A person has no legitimate expectation of privacy in information he voluntarily turns over to third parites." _Smith v. Maryland_, 442 U.S. 735 (1979); _California v. Greenwood_, 486 U.S. 35 (citing Smith) (1988).
--Tim May Views here are not the views of my Internet Service Provider or Government. ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^756839 | black markets, collapse of governments. "National borders are just speed bumps on the information superhighway."
--- 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
You mean if you give me your key the police can get it from me without a warrant? What if I don't want to give it up, and you don't? How would the police get it without a warrant?
Yes. Unless it could be shown there their was an expactation of privacy in the transfer, or that there was an understanding that you intended this to be a confidential matter. Or in the alternative, that the
I do not understand. Alice has Alice gives Bob her key. Cop wants Alice's key. Cop tells Bob "I want Alice's key, you need to give it to me. I don't have a warrant." How is this different from Bob has key. Cop want's Bob's key. Cop tells Bob "I want your key, you need to give it to me. I don't have a warrant." sheesh, what a fucked up legal system. -- sameer Voice: 510-601-9777 Community ConneXion FAX: 510-601-9734 The Internet Privacy Provider Dialin: 510-658-6376 http://www.c2.org/ (or login as "guest") sameer@c2.org
On Thu, 7 Dec 1995, sameer wrote:
You mean if you give me your key the police can get it from me without a warrant? What if I don't want to give it up, and you don't? How would the police get it without a warrant?
Yes. Unless it could be shown there their was an expactation of privacy in the transfer, or that there was an understanding that you intended this to be a confidential matter. Or in the alternative, that the
I do not understand.
Alice has Alice gives Bob her key. Cop wants Alice's key. Cop tells Bob "I want Alice's key, you need to give it to me. I don't have a warrant."
How is this different from Bob has key. Cop want's Bob's key. Cop tells Bob "I want your key, you need to give it to me. I don't have a warrant."
The real concern is this: Bob gives his key to alice. The cops walk into alice's place and 'convince' alice to turn the key over whithout a warant. Perhaps alice is more susceptible to persuasion because of some external reasons. Alice does, Bob has no privacy interest in the key, Bob can no longer argue that it is protected under the 4th amendment. Now let's get more sinister. The cops mysteriously 'find' the key somewhere without a warrant. Bob cannot argue that the key should be surpressed on the basis of the 4th amendment because he gave it to Alice, and thus clearly it's not information he was interested in protecting. (This is assuming the cops didn't violate other areas, or break into a house or something, or that if they did, that the court will find out about it). That's the rationale.
sheesh, what a fucked up legal system.
Indeed.
sameer Voice: 510-601-9777 Community ConneXion FAX: 510-601-9734 The Internet Privacy Provider Dialin: 510-658-6376 http://www.c2.org/ (or login as "guest") sameer@c2.org
--- 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
Black Unicorn wrote:
On Thu, 7 Dec 1995, sameer wrote:
You mean if you give me your key the police can get it from me without a warrant? What if I don't want to give it up, and you don't? How would the police get it without a warrant?
Yes. Unless it could be shown there their was an expactation of privacy in the transfer, or that there was an understanding that you intended this to be a confidential matter. Or in the alternative, that the
I do not understand.
Alice has Alice gives Bob her key. Cop wants Alice's key. Cop tells Bob "I want Alice's key, you need to give it to me. I don't have a warrant."
How is this different from Bob has key. Cop want's Bob's key. Cop tells Bob "I want your key, you need to give it to me. I don't have a warrant."
The real concern is this:
Bob gives his key to alice.
The cops walk into alice's place and 'convince' alice to turn the key over whithout a warant. Perhaps alice is more susceptible to persuasion because of some external reasons. Alice does, Bob has no privacy interest in the key, Bob can no longer argue that it is protected under the 4th amendment.
Now let's get more sinister.
The cops mysteriously 'find' the key somewhere without a warrant. Bob cannot argue that the key should be surpressed on the basis of the 4th amendment because he gave it to Alice, and thus clearly it's not information he was interested in protecting. (This is assuming the cops didn't violate other areas, or break into a house or something, or that if they did, that the court will find out about it).
How about if Bob had a contractual agreement with Alice to keep his key secret? --Jeff -- Jeff Weinstein - Electronic Munitions Specialist Netscape Communication Corporation jsw@netscape.com - http://home.netscape.com/people/jsw Any opinions expressed above are mine.
On Thu, 7 Dec 1995, Jeff Weinstein wrote:
Black Unicorn wrote:
On Thu, 7 Dec 1995, sameer wrote:
You mean if you give me your key the police can get it from me without a warrant? What if I don't want to give it up, and you don't? How would the police get it without a warrant?
Yes. Unless it could be shown there their was an expactation of privacy in the transfer, or that there was an understanding that you intended this to be a confidential matter. Or in the alternative, that the
I do not understand.
Alice has Alice gives Bob her key. Cop wants Alice's key. Cop tells Bob "I want Alice's key, you need to give it to me. I don't have a warrant."
How is this different from Bob has key. Cop want's Bob's key. Cop tells Bob "I want your key, you need to give it to me. I don't have a warrant."
The real concern is this:
Bob gives his key to alice.
The cops walk into alice's place and 'convince' alice to turn the key over whithout a warant. Perhaps alice is more susceptible to persuasion because of some external reasons. Alice does, Bob has no privacy interest in the key, Bob can no longer argue that it is protected under the 4th amendment.
Now let's get more sinister.
The cops mysteriously 'find' the key somewhere without a warrant. Bob cannot argue that the key should be surpressed on the basis of the 4th amendment because he gave it to Alice, and thus clearly it's not information he was interested in protecting. (This is assuming the cops didn't violate other areas, or break into a house or something, or that if they did, that the court will find out about it).
How about if Bob had a contractual agreement with Alice to keep his key secret?
Then as a defense attorney, I would argue that Bob had an obvious expectation of privacy with Alice, and that the fact that he relayed this key to Alice only under those circumstances represents a definite expression of his intent to keep the key private, thus triggering 4th amendment protections. My view is that this would be a very strong argument. Note that this is an academic opinion, not a legal one as I am not being paid.
--Jeff
-- Jeff Weinstein - Electronic Munitions Specialist Netscape Communication Corporation jsw@netscape.com - http://home.netscape.com/people/jsw Any opinions expressed above are mine.
--- 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
On Fri, 8 Dec 1995, Black Unicorn wrote:
On Thu, 7 Dec 1995, Jeff Weinstein wrote:
Black Unicorn wrote:
On Thu, 7 Dec 1995, sameer wrote:
How about if Bob had a contractual agreement with Alice to keep his key secret?
Then as a defense attorney, I would argue that Bob had an obvious expectation of privacy with Alice, and that the fact that he relayed this key to Alice only under those circumstances represents a definite expression of his intent to keep the key private, thus triggering 4th amendment protections. My view is that this would be a very strong argument.
Bob's Fourth Amendment rights are not triggered by his contract with Alice. Alice can be compelled to give up the key (by testimony or production) and giving up that key does not tend to incriminate *Alice* in a violation of law. Alice can't invoke Bob's rights against self-incrimination for obvious reasons: Alice isn't Bob. ^^^^ EBD
Note that this is an academic opinion, not a legal one as I am not being paid.
--Jeff
-- Jeff Weinstein - Electronic Munitions Specialist Netscape Communication Corporation jsw@netscape.com - http://home.netscape.com/people/jsw Any opinions expressed above are mine.
--- 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
Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
On Sun, 10 Dec 1995, Brian Davis wrote:
On Fri, 8 Dec 1995, Black Unicorn wrote:
On Thu, 7 Dec 1995, Jeff Weinstein wrote:
Black Unicorn wrote:
On Thu, 7 Dec 1995, sameer wrote:
How about if Bob had a contractual agreement with Alice to keep his key secret?
Then as a defense attorney, I would argue that Bob had an obvious expectation of privacy with Alice, and that the fact that he relayed this key to Alice only under those circumstances represents a definite expression of his intent to keep the key private, thus triggering 4th amendment protections. My view is that this would be a very strong argument.
Bob's Fourth Amendment rights are not triggered by his contract with Alice. Alice can be compelled to give up the key (by testimony or production) and giving up that key does not tend to incriminate *Alice* in a violation of law. Alice can't invoke Bob's rights against self-incrimination for obvious reasons: Alice isn't Bob. ^^^^
You've taken the narrow answer I was trying to give out of context. As for fifth amendment questions, That's another discussion entirely. If this was not an error, then you have still taken the question way beyond the narrow scope I was addressing. I was answering only as to how the manifestation of Bob's privacy interest might impact the argument that the key was no longer a protected interest acording to the Smith v. Maryland ruling, and thus unprotected by the fourth amendment on those grounds. (Assuming it would even be applied to the Bob - Alice relationship in terms of crypto keys). Your statement "Bob's Fourth Amendment rights are not triggered by his contract with Alice." Is probably correct in the event the key is obtained from Alice. It may not be if the key is obtained by electronic measures or otherwise without a warrant and then the argument is made after the fact that Bob has exerted no expectation of privacy over the key. This is the key question which bears on the key escrow's effect on Bob's protection (Alice in that example being the escrow agent). Clearly Alice in that circumstance is unlikely to give up the key without a warrant. The real worry is that the authorities are given free reign to obtain the key by other methods from Bob, or Bob's communications without a warrant by the mere fact that Bob has "tendered" the information to Alice (the escrow agent). Again, I'm addressing the narrow issue of voluntary surrendering of key information to an escrow agent and it's effect on the 'third party' rule in Smith v. Maryland, not the eventual outcome of an exclusionary hearing.
EBD
Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
--- 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
On Sun, 10 Dec 1995, Black Unicorn wrote:
On Sun, 10 Dec 1995, Brian Davis wrote:
On Fri, 8 Dec 1995, Black Unicorn wrote:
On Thu, 7 Dec 1995, Jeff Weinstein wrote:
Black Unicorn wrote:
On Thu, 7 Dec 1995, sameer wrote:
How about if Bob had a contractual agreement with Alice to keep his key secret?
Then as a defense attorney, I would argue that Bob had an obvious expectation of privacy with Alice, and that the fact that he relayed this key to Alice only under those circumstances represents a definite expression of his intent to keep the key private, thus triggering 4th amendment protections. My view is that this would be a very strong argument.
Bob's Fourth Amendment rights are not triggered by his contract with Alice. Alice can be compelled to give up the key (by testimony or production) and giving up that key does not tend to incriminate *Alice* in a violation of law. Alice can't invoke Bob's rights against self-incrimination for obvious reasons: Alice isn't Bob. ^^^^
You've taken the narrow answer I was trying to give out of context. As for fifth amendment questions, That's another discussion entirely. If this was not an error, then you have still taken the question way beyond the narrow scope I was addressing.
You are correct: I didn't realize/remember/whatever that you were limiting the remarks to the narrow scope you set forth below. And on the point you were addressing, I agree with you. Sorry to have added the fog ... EBD
I was answering only as to how the manifestation of Bob's privacy interest might impact the argument that the key was no longer a protected interest acording to the Smith v. Maryland ruling, and thus unprotected by the fourth amendment on those grounds. (Assuming it would even be applied to the Bob - Alice relationship in terms of crypto keys).
Your statement "Bob's Fourth Amendment rights are not triggered by his contract with Alice." Is probably correct in the event the key is obtained from Alice. It may not be if the key is obtained by electronic measures or otherwise without a warrant and then the argument is made after the fact that Bob has exerted no expectation of privacy over the key. This is the key question which bears on the key escrow's effect on Bob's protection (Alice in that example being the escrow agent). Clearly Alice in that circumstance is unlikely to give up the key without a warrant. The real worry is that the authorities are given free reign to obtain the key by other methods from Bob, or Bob's communications without a warrant by the mere fact that Bob has "tendered" the information to Alice (the escrow agent).
Again, I'm addressing the narrow issue of voluntary surrendering of key information to an escrow agent and it's effect on the 'third party' rule in Smith v. Maryland, not the eventual outcome of an exclusionary hearing.
EBD
Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
--- 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
Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
Brian Davis wrote:
On Fri, 8 Dec 1995, Black Unicorn wrote:
You've taken the narrow answer I was trying to give out of context. As for fifth amendment questions, That's another discussion entirely. If this was not an error, then you have still taken the question way beyond the narrow scope I was addressing.
You are correct: I didn't realize/remember/whatever that you were limiting the remarks to the narrow scope you set forth below. And on the point you were addressing, I agree with you.
Sorry to have added the fog ...
Not a problem I could have been clearer.
Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
--- 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
On Sun, 10 Dec 1995, Brian Davis wrote:
Bob's Fourth Amendment rights are not triggered by his contract with
^^^^^^ Ack. Meant "Fifth." (Although Bob's Fourth Amendment rights are not triggered either.)
Alice. Alice can be compelled to give up the key (by testimony or production) and giving up that key does not tend to incriminate *Alice* in a violation of law. Alice can't invoke Bob's rights against self-incrimination for obvious reasons: Alice isn't Bob. ^^^^ EBD
Black Unicorn writes:
Yes. I have seen holdings which indicate that information given to an employer, where there was no obvious expection that it be kept confidential, estopped 4th amendment protections to its introduction when obtained without a warrant. [...and...] Again, because of the nature of the relationship. There is an expectation that a conversation with an attorney is one of the most private exchanges you can engage in. As for rare exceptions, I'm not so sure I would term them rare.
What happens if I disclose a key to my employer's corporate law firm ? Does that clearly lie one way or the other, or would it likely hinge upon the conditions under which I came to reveal the key ? -Futplex <futplex@pseudonym.com>
On Fri, 8 Dec 1995, Futplex wrote:
Black Unicorn writes:
Yes. I have seen holdings which indicate that information given to an employer, where there was no obvious expection that it be kept confidential, estopped 4th amendment protections to its introduction when obtained without a warrant. [...and...] Again, because of the nature of the relationship. There is an expectation that a conversation with an attorney is one of the most private exchanges you can engage in. As for rare exceptions, I'm not so sure I would term them rare.
What happens if I disclose a key to my employer's corporate law firm ? Does that clearly lie one way or the other, or would it likely hinge upon the conditions under which I came to reveal the key ?
This becomes highly speculative. My inclination is to say that it would hinge on the conditions under which you tendered the key to the legal department of your employer. This is a question of law, and would probably depend as much on the judge as on the circumstances. Remember, 4th amendment rulings AGAINST the prosecution are very tough for a judge to make, because they usually mean excluding evidence key to the prosecution's case, and most often they arise in circumstances where the defendant looks guilty as sin.
-Futplex <futplex@pseudonym.com>
--- 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
On Fri, 8 Dec 1995, Futplex wrote:
Black Unicorn writes:
Yes. I have seen holdings which indicate that information given to an employer, where there was no obvious expection that it be kept confidential, estopped 4th amendment protections to its introduction when obtained without a warrant. [...and...] Again, because of the nature of the relationship. There is an expectation that a conversation with an attorney is one of the most private exchanges you can engage in. As for rare exceptions, I'm not so sure I would term them rare.
What happens if I disclose a key to my employer's corporate law firm ?
The "key" here to the legal analysis is likely to be that the *employer's* law firm does not represent you and that the information disclosed is not privileged. The law firm's duty is to represent the corporation, not you. Certainly, such things as how you came to reveal it and what your position if the corporation could come into play, but in general, that firm is NOT your lawyer.
Does that clearly lie one way or the other, or would it likely hinge upon the conditions under which I came to reveal the key ?
-Futplex <futplex@pseudonym.com>
EBD Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
participants (7)
-
Black Unicorn -
Brian Davis -
futplex＠pseudonym.com -
Jeff Weinstein -
Michael Froomkin -
sameer -
tcmay＠got.net