An unnamed cypherpunk asked:

I was just wondering how/if [International Union] fit[s] in with frequent claim 'the judge can throw away the key' if he wants......

c'punks - I've been involved in a private discussion with a list reader about the extent to which courts can impose contempt fines and sanctions. I thought I would post the results to the list as many have expressed interest in the ways that courts might try to compel production of crypto keys or compel offshore e-cash institutions. The bulk of my answer follows. The key to limiting the ability of a court to summarily enter contempt sanctions has always been the classification of the sanctions. "Criminal" sanctions, may entitle the witness to a trial by jury. "For 'serious' criminal contempts involving imprisonment of more than six months, these [procedural] protections include the right to jury trial. " International Union, United Mine Workers of America, et al. v. Bagwell et al., 114 S. Ct. 2552 (1993)(hereinafter, International Union)(citing Bloom, 391 U.S., at 199; Taylor v. Hayes, 418 U.S. 488, 495, 41 L. Ed. 2d 897, 94 S. Ct. 2697 (1974)). "Civil" sanctions do not require such protections and can be imposed on the spot and without review. "...civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required." International Union, supra. The court in International Union also makes a distinction between "direct" and "indirect" contempts. "Direct contempts that occur in the court's presence may be immediately adjudged and sanctioned summarily." International Union, supra. These would certainly include refusing to reveal non-privileged information on the stand, and may include the refusal to reveal the passphrase to a crypto key while on the stand. The court also recognizes that the indefinite confinement option is available to judges. Specifically, "[t]he paradigmatic coercive, civil contempt sanction, as set forth in Gompers, involves confining a contemnor _indefinitely_ until he complies with an affirmative command such as an order "to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance." International Union, supra (emphasis added)(citing Gompers, 221 U.S., at 442). See also, McCrone v. United States, 307 U.S. 61, 64, 83 L. Ed. 1108, 59 S. Ct. 685 (1939) (failure to testify). Shillitani v. United States, 384 U.S. 364, 370, n. 6, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966) (upholding as civil "a determinate 24 month sentence which includes a purge clause"). My favorite language from the court defining such sanctions is this: "In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus "carries the keys of his prison in his own pocket." International Union, supra (citing Gompers, 221 U.S., at 442, quoting In re Nevitt, 117 Fed. 451 (1902)). The court goes on: "A contempt fine accordingly is considered civil and remedial if it either 'coerces the defendant into compliance with the court's order, [or] . . . compensates the complainant for losses sustained.'" International Union, supra (quoting United States v. United Mine Workers of America, 330 U.S. 258, 303-304). And, "Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge." International Union, supra, (citing Penfield Co. v. SEC, 330 U.S. 585, 590, 91 L. Ed. 1117, 67 S. Ct. 918 (1947)). And on per diem fines, "Like civil imprisonment, such fines exert a constant coercive pressure, and once the jural command is obeyed, the future, indefinite, daily fines are purged." International Union, supra. The court makes a point to justify severe sanctions where testimony is sought, or the proceedings are threatened. "The necessity justification for the contempt authority is at its pinnacle, of course, where contumacious conduct threatens a court's immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court... [t]hus, petty, direct contempts in the presence of the court traditionally have been subject to summary adjudication, 'to maintain order in the courtroom and the integrity of the trial process in the face of an 'actual obstruction of justice.'" International Union, supra (quoting Codispoti v. Pennsylvania, 418 U.S., at 513 and citing numerous other sources). Most interesting to the crypto crowd: "Contempts such as failure to comply with document discovery, for example, while occurring outside the court's presence, impede the court's ability to adjudicate the proceedings before it and thus touch upon the core justification for the contempt power.... Similarly, indirect contempts involving discrete, readily ascertainable acts, _such as turning over a key_ or payment of a judgment, properly may be adjudicated through civil proceedings since the need for extensive, impartial fact-finding is less pressing." International Union, supra (emphasis added). Hence, International Union preserves very broad contempt sanctions which can be imposed without much review provided they fall into a rather wide "civil" categorization, rather than a "criminal" one. I think it's clear, the court literally spells this out, that holding a witness indefinitely until he complies with court orders is within the discretion of a judge. Compelling through sanctions the production of a "key" (though I'm not sure a crypto key is directly contemplated) is likewise clearly permitted. --- My preferred 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