re it had to happen

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 Bill Stewart writes;

>Assuming the arrest warrant was good not revealing the key to a
>duly authorized court representative would be illegal (ie
>interfereing with a police investigation). If the courts serve a
>warrant for your arrest and the confiscation of data on your hard
>drive (and you refuse to turn the data over even after talking w/
>an attorney) is specificaly mentioned you are opening
>yourself up for another whole world of legal hurt.

>A citizen would have the legal right to refuse prior to talking w/
>an attorney but not after, at that point it becomes witholding
>evidence.

>If the process is legal there should be no reason a citizen can
>refuse to turn over his private keys (I don't believe
>self-incrimination holds here).

Bill, help me out here, if the warrant allows them to confiscate
your harddrive that part I can understand, But if being forced to
provide the decryption isn't self-incrimination, what the hell good
is what we're doing here.


Brian Williams
Extropian
Cypherpatriot



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Here's the deal, as this certified non-lawyer sees it:

*	There is ample precedent for forcing suspects to hand over
	materiel other than spoken or written data.  Keys to safe
	deposit boxes come to mind, as do of course blood and urine 
	samples.

*	The tricky case is one in which the key is actually a phrase 
	like "I am a drug dealer and I did the crime".  I'm not
	exactly sure how this would be used in court; maybe something
	like "I refuse to reveal that information on the grounds that
	the key itself is in the form of a statement which could be
	construed to be incrimintating."  Of course, I don't know why
	you couldn't always say that...

If Mr. Godwin isn't too bothered by the re-emergence of this thread,
he may choose to share with us further thoughts on the topic raised in
the second bullet.  My guess is that such a situation will have to be
tested in court, and I can only hope that it gets tested with the
assistance of some very skilled counsel.

--
Mike McNally : m5@tivoli.com : Day Laborer : Tivoli Systems : Austin, TX
------------------------------------------------------------------------
Remember that all experimentation does not produce extrapolated results.
                                                           - k. pisichko

Mike McNally writes:

> *	The tricky case is one in which the key is actually a phrase 
> 	like "I am a drug dealer and I did the crime".  I'm not
> 	exactly sure how this would be used in court; maybe something
> 	like "I refuse to reveal that information on the grounds that
> 	the key itself is in the form of a statement which could be
> 	construed to be incrimintating."  Of course, I don't know why
> 	you couldn't always say that...
> 
> If Mr. Godwin isn't too bothered by the re-emergence of this thread,
> he may choose to share with us further thoughts on the topic raised in
> the second bullet.  My guess is that such a situation will have to be
> tested in court, and I can only hope that it gets tested with the
> assistance of some very skilled counsel.

I am now convinced that even if the key were a statement of the 
form "I did crime X", it could still be compelled, because the 
actual statement is not testimonial, and would not be used as evidence
(e.g., as an admission).


--Mike

Brian Williams writes -

>  Bill Stewart writes;
> 
> >Assuming the arrest warrant was good not revealing the key to a
> >duly authorized court representative would be illegal (ie
> >interfereing with a police investigation). If the courts serve a
> >warrant for your arrest and the confiscation of data on your hard
> >drive (and you refuse to turn the data over even after talking w/
> >an attorney) is specificaly mentioned you are opening
> >yourself up for another whole world of legal hurt.
> 
> >A citizen would have the legal right to refuse prior to talking w/
> >an attorney but not after, at that point it becomes witholding
> >evidence.
> 
> >If the process is legal there should be no reason a citizen can
> >refuse to turn over his private keys (I don't believe
> >self-incrimination holds here).
> 
> Bill, help me out here, if the warrant allows them to confiscate
> your harddrive that part I can understand, But if being forced to
> provide the decryption isn't self-incrimination, what the hell good
> is what we're doing here.

That's a good question, Bryan, and one I'm sure we'd all like
to explore further. Can one be legally compelled to divulge the
secret key(s) to encrypted data? Or does it fly in the face of
self-incrimination?

I CC:'d Mike Godwin on this because I'd value his views on this
topic, if he'd care to express them. Being an attorney with
considerable experience in digital matters, he may have an insight
into this that we may be overlooking.

Cheers,

____________________________________________________________________________
Paul Ferguson                         
Sprint Managed Router Network Engineering              tel: 703.904.2437 
Herndon, Virginia  USA                              e-mail: ferguson@icp.net