"Contempt" charges likely to increase

I almost titled this thread "'Contempt' charges likely to increase in
popularity," but I felt the "popularity" would draw comment. By
"popularity" I mean amongst judges and law enforcement.

Many of the proposals here and in related discussions of offshore asset
protection posit the following situations:

* Alice places a copy of her key, or secret-shared parts of her key, in a
location not reachable by subpoena. (This might be via strong crypto, a la
mixes and pools, or just in a jurisdiction which historically and typically
does not honor U.S. subpoenas.)

* Alice deposits some fraction of her assets in accounts in jurisdictions
which are friendly to such purposes. (Either "tax havens" or "asset
protection havens," such as are described in various books and seminars.)

* Alice receives information from a witness or source in a criminal case.
She declines to say who this source is. Depending on the "shield laws"
(about which I'm no expert), she may be held in contempt unless she reveals
this information. (Side Note: I don't believe the law should make the
distinction it has made between, say, Alice B. Toklas, Reporter for the
"Washington Post," and Tim May, reporter for the "Cypherpunks" list; the
law seems to create a distinction between "the press" and the rest of us.
On what basis?)

* Alice places her child in the hands of someone known only to her, e.g.,
to prevent the child from being given visitation rights by a spouse. (This
last example is of a real one, based on the Rebecca Morgan case. The other
examples are real, too, though not necessarily associated with a particular
case.)

In these cases, Alice has a secret of some sort and says "nyah nyah nyah"
to those seeking the secret. With strong crypto, such situations are likely
to become more common.

The courts know that Alice can in fact retrieve the secrets, the funds, the
child...and the courts know that only a "contempt of court" decree will
serve as the lever to pry out this retrieval.

What about the Fifth Amendment? Scholars are addressing this issue of
compelled disclosure of cryptographic keys. Note, of course, that diaries,
business records, papers, and, indeed, the entire contents of a putative
crime scene are accessible to crime investigators and the legal system.
(Whether giving up a key constitutes "testifying against one's self" or not
is undecided, so far as I know. My own inclination is that it will be
decided to be no different than the key to a locked diary--by itself, it is
not self-incrimination.)

That the key is _stored_ someplace else (the escrow agent, either in the
country or outside the country) makes the "cannot be compelled to testify
against one's self" interpretation even more of a reach, in my non-lawyer
opinion.

So, I see a rise in the use of "contempt" charges. Contempt charges have a
kind of time limit, in practice, and there is a common interpretation that
a person may be jailed on contempt charges so long as there is likelihood
that she will eventually reveal the information sought. (Reporters have
been jailed for more than six months, and I recall that Rebecca Morgan was
jailed for a couple of years for refusing to tell the court the whereabouts
of her daughter...)

In short, "If you can retrieve the information or assets we order you to,
and don't, then you'll be held in contempt of court until you do."

If the secrets or assets _cannot_ be retrieved--a scenario which is
possible, if the protocol is so written (clauses for court action)--then
contempt charges are meaningless and would not stand, IMNALO.

Legal students out there might find that specializing in this area of law
brings in more clients in the coming decades.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

On Fri, 5 Apr 1996, Timothy C. May wrote:

> If the secrets or assets _cannot_ be retrieved--a scenario which is
> possible, if the protocol is so written (clauses for court action)--then
> contempt charges are meaningless and would not stand, IMNALO.

I'm not sure an appeals court will be particularly receptive to this 
argument.  I'll do a little research on the issue next week but I suspect 
that appeals courts will be reluctant to overturn contempt charges on 
this basis.  Firstly, appeals courts generally do not do their own 
findings of fact, but take the lower courts findings for granted.  
Secondly, in the absence of serious error, higher courts are unlikely to 
give their fellows a hard time.  The culture of the jurist as it 
were.

In the case where one appeals on the basis that the data cannot be retrieved 
because of cryptographic protections, an appeals court is unlikely to 
disturb the lower courts implicit finding that the data is recoverable.  
"Why would our esteemed member of the bench below impose such sanctions 
if he did not believe they might shake loose the very evidence he seeks?"

Not impossible that it would come out the other way, but I suspect it 
would have to be a really obvious error on the part of the court below.

I might add that the Cayman Islands are full of trust companies with 
provisions which forbid the disclosure of data to a client who is 
coerced.  A law on the books refuses to recognize "consent" orders made 
under judicial compulsion.  This would give the appearance of total 
unavailability of evidence and suggest the futility of contempt 
charges.  Yet courts have still, and with no small measure of success, 
imposed sanctions on witnesses so protected.

> 
> Legal students out there might find that specializing in this area of law
> brings in more clients in the coming decades.
> 
> --Tim May
> 
> Boycott "Big Brother Inside" software!
> We got computers, we're tapping phone lines, we know that that ain't allowed.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
> tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> Higher Power: 2^756839 - 1  | black markets, collapse of governments.
> "National borders aren't even speed bumps on the information superhighway."

---
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