Re: GAK and self-incrimination?
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.
On Sun, 10 Dec 1995, Ed Carp wrote:
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 think you are referring to the so-called "exculpatory no" exception, which says that it is not a crime to say no on a government form when saying yes would admit a crime. That exception has been given some validity in some Circuit Courts of Appeal, but not in the Sixth Circuit where I practice. Perhaps others can comment on the Ninth Circuit, et al. If the issue has made it to the Supreme Court, I'm unaware of it (although I'd almost certainly know if the doctrine was accepted by the Court and the Sixth Circuit therefore overruled...) Morale: It may still be important *where* you are, ahem, less than completely forthcoming. EBD
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.
Not a lawyer on the Net, although I play one in real life. ********************************************************** Flame away! I get treated worse in person every day!!
participants (2)
-
Brian Davis -
Ed Carp