[12642] in Commercialization & Privatization of the Internet
Re: Gov demanding PGP key.
daemon@ATHENA.MIT.EDU (Willis Marti)
Wed May 25 03:14:05 1994
From: Willis Marti <willis@cs.tamu.edu>
Date: Tue, 24 May 1994 20:20:10 -0500
To: bruce@phantom.com, willis@cs.tamu.edu
Cc: bzs@world.std.com, eff-mail-com-priv@eff.org, kadie@eff.org
This email responds to several other emails; hopefully I get the
attributions straight.
In summary, someone in California has been
charged with (or possibly has been convicted of ) child molesting. {The actual
crime is not important except to elicit more sympathy for the government and
less for the individual}.
On a computer disk confiscated under a search warrant, there is a
file, entitled 'diary', that is encrypted. The issue here is whether the
government can require the key from the individual.
Primarily on 5th amendment grounds, I argue that the government cannot
require the key be provided. I feel, but can not yet find a legal basis,
that the government does not have the general right to require any piece of
information that it decides it wants.
=============================
bruce@phantom.com writes:
|[Willis Marti] has written:
||
|[...]
|| I was under the impression that he was *charged* with child molesting...
||
|Bruce
|Right. And when someone is *charged* with a crime then the Government
|has the right to *investigate* that crime thru the use of a *subpoena*.
|Am I getting thru?
The government may investigate, but presumably the information in the file
could cause criminal charges to be filed. The 5th amendment states:
"No person ... shall be compelled in any criminal case to be a witness against
himself..."
Are you saying this does not apply?
=============================
bzs@world.std.com (Barry Shein) writes:
[...]
>As I understood the news report the guy *is* sitting in prison and
>either has been convicted of a crime or is likely to without this
>information.
>
>The only reason they knew there was an encrypted file called "diary"
>on his system was because they already grabbed the system by
>warrant/subpoena or whatever based on other evidence. They just also
>wanted the contents of that particular file. But it wasn't the only
>evidence, it came up after they'd arrested him.
>
>I assume they want the info to see if they can track down other
>victims. But if they already have him on a conviction without that
>info I'd call that probable cause to investigate further.
My previous posting had a typo referencing the 4th Amendment -- should have
been the 5th. Are you saying that doesn't apply?
=============================
rob horn <horn%temerity@leia.polaroid.com> writes:
>
>> What ever happened to the 4th amendment? How can you advocate someone being
>> imprisoned (for not responding to a subponea, constitutional or not) without
>> bail or without even being convicted of a crime?
>>
>Because that's the law. The imprisonment is for contempt of court. That
>is a crime and the punishment is imprisonment. The contempt is for
>refusal to obey a lawful court order. To appeal the contempt you must
>show that the court order is not lawful. The order to produce documents
>is generally lawful under most circumstances. The constitution does not
>protect your documents, it merely requires that there be a valid search
>warrant. The logic behind encryption keys is based on the rulings around
>safes. Delivering a locked safe with documents inside is not acceptable.
>The key to the safe must also be provided.
This is against both 5th and 8th amendments: the 5th because the guvmint is
asking for self-incrimination, the 8th because of excessive bail (i.e, he can't
get bailed out from the contempt of court).a Note that he did not *deliver*
the encrypted document (safe); the government *took* it (presumably legally
here). A subpoena is not legal here.
