[45102] in Cypherpunks
Re: GAK and self-incrimination?
daemon@ATHENA.MIT.EDU (Ed Carp)
Sun Dec 10 14:08:40 1995
From: "Ed Carp" <khijol!netcom.com!ecarp@cygnus.com>
To: Greg Broiles <khijol!darkwing.uoregon.edu!gbroiles@cygnus.com>,
khijol!got.net!tcmay@cygnus.com,
khijol!toad.com!cypherpunks@cygnus.com
Date: Sun, 10 Dec 1995 12:49:36 +0600
Reply-To: khijol!netcom.com!ecarp@cygnus.com
Cc: khijol!got.net!tcmay@cygnus.com
> Date: Sun, 10 Dec 1995 02:57:36 -0800
> To: cypherpunks@toad.com
> From: Greg Broiles <gbroiles@darkwing.uoregon.edu>
> Subject: Re: GAK and self-incrimination?
> Cc: tcmay@got.net
>
> Tim May writes:
>
> >Consider this hypo: I send an encrypted message to a partner in crime
> >containing plans for future crimes and descriptions of past crimes. I don't
> >GAK the message. The government prosecutes me under the Anti-Terrorism and
> >Child Protection Act of 1997.
> >
> >My defense? That GAKKing the message would be tantamount to incriminating
> >myself, which the Fifth Amendment protects me against.
>
> The Fifth protects you against *compelled* self-incrimination - in
> particular, the right to be free from the "cruel trilemma" of
>
> o conviction of a substantive crime, based on your
> (true) testimony
> o conviction of perjury, for lying when asked to incriminate
> yourself
> o contempt of court sanctions, for refusing to answer
>
> but your hypo doesn't seem to create that forbidden situation. In
> particular, you're free to simply not send the message at all.
I don't believe that that would be a consideration. Wasn't there a
court case a few years ago, in which a convicted criminal sued the
government, charging that filling out one of those forms that you
have to fill out when you buy a gun was a violation of his 5th
amendment rights? What ever happened to that case?
I also think that, besides the obvious 5th amendment problems, there
would be a 1st amendment problem - if you "*had* to use GAK to
communicate, that would be an impermissible restriction on your 1st
amendment rights.
