[117248] in Cypherpunks
Re: ACTION ALERT: Crypto Legislation
daemon@ATHENA.MIT.EDU (Tim May)
Sun Aug 29 23:13:29 1999
Date: Sun, 29 Aug 1999 22:37:48 -0400
Message-Id: <v03130318b3ef9a515c58@[207.111.241.240]>
From: Tim May <tcmay@got.net>
To: Multiple recipients of list <cypherpunks@openpgp.net>
Content-Type: text/plain; charset="us-ascii"
Reply-To: Tim May <tcmay@got.net>
At 11:21 AM -0700 1999-08-29, Michael Froomkin - U.Miami School of Law wrote:
>On Sun, 29 Aug 1999, Declan McCullagh wrote:
>
>> There have been some law review articles talking about this. Short answer
>> seems to be if you're requested to turn over/decrypt info in a case when
>> you're not a defendant, you gotta on pain of contempt. Defendants have 5A
>> claim.
>
>This is maybe is a little too short an answer. The 5th Am. applies with
>equal force whether or not you are a defendant, so long as (1) the info is
>in your control (e.g. it's really yours and not, say, a corporate record),
>and (2) it would potentially tend to incriminate you (which is why you
>have do disclose it if they give you immunity, like it or not).
>
>Embarrassing you, or incriminating your friends does not trigger the 5th.
By the way, how does a judge determine if a refusal to answer is a "valid"
5th Amendment reason or just an "embarassment" or other "non-valid" reason?
Does the witness answer the question(s) in the judge's chambers? (What
keeps the judge from passing on the possibly-incriminating evidence? "I
cannot release that record, your honor, because I was actually the wheelman
in the Oklahoma City bombing, and giving the password to my encrypted disk
would not only help you convict McVeigh and Nichols, it would also
implicate me.")
Suppose Alice is part of a conspiracy. She is not being charged in a
particular case. She is ordered to release records which will implicate
Bob. Bob sees this is going to happen, or has happened, and cuts a deal
with the prosecution to name names, including Alice's.
Seems to me Alice should have had the right to take the Fifth.
(This, by the way, was as near as I can tell analogous to the Carl Johnson
case, with various list operators ordered to produce records. Inasmuch as
the prosecutors and their puppetmaster (Jeff Gordon and Company) were
dropping hints that a larger "Cypherpunks conspiracy" to obstruct justice
was being investigated (pace Adam Back's situation), then the order to
produce records was potentially implicating those same list members.)
--Tim May
Don't tread on me.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May | Crypto Anarchy: encryption, digital money,
ComSec 3DES: 831-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets,
"Cyphernomicon" | black markets, collapse of governments.
