CDR: Re: Treatment of subjugated people (and bagpipes)

[Tim May]

At 4:38 PM -0400 9/4/00, Steven Furlong wrote:
>Ray Dillinger wrote:
>>  "Poor Man's Crypto", possibly even better than digital crypto,
>>  may consist in creating an artificial language together, and
>>  then using it whenever you don't want to be eavesdropped on.
>
>cf my remarks and questions on the use of Lojban for a personal log.
>Lojban is an artificial language with a user base of several hundred.
>I started a thread in mid-July. The consensus, from this list and some
>law-oriented newsgroups, is that you can't be forced to translate a
>journal written in a non-English language. Possibly you can't even be
>forced to identify the language it's written in.
>
>The matter of whether you can be forced to either decrypt encrypted
>files or to provide the key is more confused: I got approximately
>equal numbers of responses saying you can't be forced to decrypt and
>saying you can be so forced.
>
>I have not run either of those questions past lawyers that I've paid,
>so the responses may be worth no more than I paid for them.

And almost any attorney you would be able to hire would not have a 
clue on this issue. Possibly some world-class first and fifth 
amendment scholars would have a clue, possibly some EFF- or 
former-EFF lawyers, possibly some cyberlaw-clued folks, but not any 
lawyer you'd fine in a typical city in the phone book.

The specific issue of compelling a key has not yet been tested in a 
major court case. Mike Godwin wrote up some views on this some years 
ago (long enough ago that I quoted it in my 1994 "Cyphernomicon').

There are good reasons for the governments of the world (even 
Italy's, for our Italian friend who is insulted that we don't write 
enough about Italy) not to want to test the limits of the law: 
adhocracies like ambiguity.

And of course they're worried they might lose a high-visibility case 
involving crypto, so they don't push the issue.

Lastly, in most cases they don't need to try to compell disclosure of 
a key. They either have the records or can get them some other way, 
or they can rig the case some other way. Having a case depend on a 
particular encrypted record is unlikely, though it may be more common 
in the future.

What about the right to remain silent? How does the Fifth Amendment 
impinge on this issue?

A criminal defendant has the right to remain silent. He cannot be 
compelled to tell where evidence is located. He cannot be compelled 
to testify against himself. (BTW, don't even bother, anyone, to bring 
out the old chestnut of a person picking "I committed this crime" as 
his passphrase. Dealt with convincingly many years ago.)

Of more likely interest will be encrypted records in "discovery" 
cases. And in those cases a person is required to provide reasonable 
assistance, e.g., in helping the attorney of a spouse in determining 
where assets are located. Encryption would not even be an issue. The 
judge would simply order the records converted into readable form, on 
pain of contempt or, worse, on pain of a divorce settlement massively 
favoring the spouse.

(A nit: sometimes parties in a case try to overwhelm the other side 
with junk, as in shipping hundreds of boxes of documents to the other 
side. The IBM antitrust case, for example. This might be a good case 
to look at to see how and where the court compelled IBM to help in 
deciphering (English meaning, not crypto meaning) the hundreds of 
thousands of documents.)

--Tim May

--Tim May
-- 
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   831-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
"Cyphernomicon"             | black markets, collapse of governments.