Scientology/Wollersheim as test case for key disclosure

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Andrew Loewenstern writes:

> > Modemac writes:
> >  Mr. Wollersheim has stated that he will go to jail before he reveals
> >  his encryption key.
> [...snip...]
> >  Call this one: BIG WIN FOR PGP!
> 
> Could this be it?  The test case for forced key disclosure?  The  
> Scientologists seem very determined and already have a grudge against  
> Wollersheim (according to a web page I saw Co$ owes him several million from  
> a settlement).  Has Co$ filed against Wollersheim over this yet?
> 
> If this does go to court and forcing Wollersheim to reveal the key becomes a  
> central issue, is this the test case "we" want?  Is this a "BIG WIN FOR PGP!"  
> or not?

Well, since it's (apparently) a civil case against Wollersheim, the 
potential Fifth Amendment self-incrimination issues may be murkier, so 
this may not be a good test case for the criminal context. In federal civil
trials, material reasonably likely to lead to the discovery of admissible
evidence is discoverable unless there's an applicable privilege - this
means that in a civil case, a defendant may be forced to hand over material
likely to expose them to liabilty. (The Fifth Amendment privilege against
criminal self-incrimination still applies).

I'm not sure that key disclosure will even be necessary - the Church
(or whatever annoying tentacle of it is suing Wollersheim) is entitled
to, for example, "a copy of . . . all documents, data compilations, and
tangible things in the possession, custody, or control of the party
that are relevant to disputed facts alleged with particularity in 
the pleadings" (Fed. R. Civ. P. 26(a)(1)(B)). I don't see why
Wollersheim couldn't comply with the discovery rules by providing 
plaintext copies of all relevant information, unless for some reason
the passphrase is itself relevant.


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On Sat, 9 Sep 1995, Greg Broiles wrote:

> 
> the pleadings" (Fed. R. Civ. P. 26(a)(1)(B)). I don't see why
> Wollersheim couldn't comply with the discovery rules by providing 
> plaintext copies of all relevant information, unless for some reason
> the passphrase is itself relevant.
> 
Ah.  but if there is no plaintext, the question is whether you comply 
with the rule by providing the encrypted text rather than plaintext.  I 
would say you have to provide the plaintext in the absence of a legitimate 
privilege claim, but I don't recall a case to this effect (there is 
precedent for requiring translation of foreign language documents when 
the request is covered by an evidence conention; I don't recall if there 
are any such cases that fall purely under domestic US rules).  Anyone have 
chapter and verse?


A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | mfroomki@umiami.ir.miami.edu
U. Miami School of Law     | 
P.O. Box 248087            | It's hot here.  And humid.
Coral Gables, FL 33124 USA |
See (soon to move to its real home): http://www.law.miami.edu/~mfroomki

One solution to this problem would be to modify PGP so that the session key for 
the document was released rather than the passphrase for the public key. The 
former would provide only read access, the latter would allow th scientologists 
to forge Wollerstein's signature on other material. In addition many of the 
documents may be subject to privillege.


I would have thought that there would be grounds to oppose the court action in 
any case on various grounds, not least the previous judgement which the 
Scientologists lost and have failed to pay the damages awarded. There might also 
be grounds to oppose disclosure if the case was brought in order to obtain 
secret material rather than for legitimate purposes.

In the UK the judge can be asked to review documents and decide whether they 
should be made avaliable.

Surely the disclosure laws would work in wollerstein's favour in any case. He 
can request disclosure of internal Scientology material. 

	Phill

For some reason I think it was French, but I don't
have a citation either.  But I think you're right.

MacN

On Sat, 9 Sep 1995, Michael Froomkin wrote:

> Ah.  but if there is no plaintext, the question is whether you comply 
> with the rule by providing the encrypted text rather than plaintext.  I 
> would say you have to provide the plaintext in the absence of a legitimate 
> privilege claim, but I don't recall a case to this effect (there is 
> precedent for requiring translation of foreign language documents when 
> the request is covered by an evidence conention; I don't recall if there 
> are any such cases that fall purely under domestic US rules).  Anyone have 
> chapter and verse?
> 
> 
> A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
> Associate Professor of Law | mfroomki@umiami.ir.miami.edu
> U. Miami School of Law     | 
> P.O. Box 248087            | It's hot here.  And humid.
> Coral Gables, FL 33124 USA |
> See (soon to move to its real home): http://www.law.miami.edu/~mfroomki
> 
>