Re: COE Recommendation No. R (95) 13

>>9. Subject to legal privileges or protection, most legal systems permit
>>investigating authorities to order persons to hand over objects under
>>their control that are required to serve as evidence. In a parallel
>>fashion, provisions should be made for the power to order persons to
>>submit any specified data under their control in a computer system in the
>>form required by the investigating authority.
>>________________________________________________________________________
>
>>Is this 'what we would want'? It clearly means that one can be ordered
>>to reveal the password to encrypted data and punished by law if one
>>refuses.

Forgive me if this point has already been raised, but couldn't an 
objection to such laws be based on the protection against 
self-incrimination? 

Maybe this all depends on whether the legal context is a civil or a 
criminal proceeding. If I'm being sued and they ask me at a deposition
whether I did such-and-such, I can't take the Fifth (or can I?). But 
if I'm accused of murder, the police can't make me tell them where I've 
buried the knife. However, if I have a wall safe and they 
get a warrant to search it, can I be jailed for contempt if I don't 
give them the combination? 

This seems to be a case where existing legal paradigms ought to 
extend rather naturally. Whether the existing paradigms are any 
good or not is of course a separate question. 

--Michael Smith
  smithmi@dev.prodigy.com

>Forgive me if this point has already been raised, but couldn't an 
>objection to such laws be based on the protection against 
>self-incrimination? 

There is no such right in most (if not all) european countries. In
France there is not even the presumption of innocence.

The British Conservatives have recently passed a criminal justice
Bill which abolishes the right to silence and most other protections
for the defendant. They are busy writing another.

That is not to say US politicians are any better. Congress is busily 
rolling back on all the protections they can. Got to fill those jails
somehow you know.

	Phill

smithmi@dev.prodigy.com (Michael Smith) said:

>>> 9. Subject to legal privileges or protection, most legal systems
>>> permit investigating authorities to order persons to hand over
>>> objects under their control that are required to serve as
>>> evidence. In a parallel fashion, provisions should be made for the
>>> power to order persons to submit any specified data under their
>>> control in a computer system in the form required by the
>>> investigating authority.
>>> ________________________________________________________________________
>> Is this 'what we would want'? It clearly means that one can be
>> ordered to reveal the password to encrypted data and punished by law
>> if one refuses.

MS> Forgive me if this point has already been raised, but couldn't an
MS> objection to such laws be based on the protection against
MS> self-incrimination?

MS> Maybe this all depends on whether the legal context is a civil or a
MS> criminal proceeding. If I'm being sued and they ask me at a
MS> deposition whether I did such-and-such, I can't take the Fifth (or
MS> can I?). But if I'm accused of murder, the police can't make me tell
MS> them where I've buried the knife. However, if I have a wall safe and
MS> they get a warrant to search it, can I be jailed for contempt if I
MS> don't give them the combination?

	Well, IANAL, but yes, I believe that you can be.  Or, worse,
obstruction of justice.  Especially if they cut it open and find that
the knife was in the safe.

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