Re: Is there a lawyer in the house?

[Black Unicorn <unicorn@schloss.li>]

On Thu, 7 Dec 1995, Timothy C. May wrote:

> At 9:27 PM 12/7/95, cme@acm.org wrote:
> 
> >It could be even worse.  I was on a panel last year with Scott Charney (sp?)
> >(I believe from DoJ) during which he commented that if you give your secret
> >key to anyone -- e.g., your own company -- then you have given up the
> >presumption of privacy.  That leaves the police open to get that secret
> >without a warrant.  This claim should be checked by a real lawyer.
> 
> Huh?
> 
> You mean if you give me your key the police can get it from me without a
> warrant? What if I don't want to give it up, and you don't? How would the
> police get it without a warrant?

Yes.  Unless it could be shown there their was an expactation of privacy 
in the transfer, or that there was an understanding that you intended this 
to be a confidential matter.  Or in the alternative, that the 
relationship between you and the third party is suggestive of such a 
confidence on its face.  Remember this is a ex post ruling.  The police 
will just come in and take the information, you have to fight it AFTER 
the fact.  It sounds fine in e-mail to ask the question "How will they 
get in" but in real life it becomes a much less realistic proposition.
 
> (And "I" could be your employer, so the point is clear.)

Yes.  I have seen holdings which indicate that information given to an 
employer, where there was no obvious expection that it be kept 
confidential, estopped 4th amendment protections to its introduction when 
obtained without a warrant.

> And even more strikingly, what if you give your private key to your lawyer
> for safekeeping? Has attorney-client privilege gone away?

Hardly.  See above.  It hinges on the nature of the relationship and how 
it bears on the expectation of privacy.  The supreme court has ruled that 
the relationship with the phone company does not meet such a standard, 
and one can assume ISP's apply the same way.  I could go on spilling out 
holdings if there is enough interest.

> (Granted, there are ways to break attorney-client privilege, but these are
> rare exceptions. In any case, the police could not get the private key
> without a court order, warrant, whatever.)

Again, because of the nature of the relationship.  There is an 
expectation that a conversation with an attorney is one of the most 
private exchanges you can engage in.  As for rare exceptions, I'm not so 
sure I would term them rare.

> I can believe that some cases of giving up keys wipes out one's arguments
> based strictly on "privacy," but not that it wipes out other arguments.

It essentially prevents you from claiming you really had a demonstrated 
privacy interest in it, unless there are other circumstances to indicate 
such an interest.  Think of the court as saying "How the hell is this 
private if you told maggy and fred?"

> It seems to me that if one wants to voluntarily escrow private keys, for
> safekeeping, one's personal lawyer is a safe bet: it is very difficult to
> break this kind of attorney-client confidentiality, from what I know of
> such things.

I don't know where you came up with the lawyer example.  I don't know 
that anyone was claiming that one could break the attorney client trust 
on this basis.  However, I think, as a tangential matter, a court will 
examine very closely a claim that keys protected by such a trust can not 
be used as evidence.  To hold this so broadly would be to tell the 
criminal he merely needs to give the weapon used in a crime to his 
attorney to prevent its introduction.

You also need to make a distinction between a 4th amendment matter (which 
is the issue at hand) and the seperate and distinct protection of the 
attorney client relationship.

"A person has no legitimate expectation of privacy in information he 
voluntarily turns over to third parites."  _Smith v. Maryland_, 442 U.S. 
735 (1979); _California v. Greenwood_, 486 U.S. 35 (citing Smith) (1988).

> --Tim May
> Views here are not the views of my Internet Service Provider or Government.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
> tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> Corralitos, CA              | knowledge, reputations, information markets,
> Higher Power: 2^756839      | black markets, collapse of governments.
> "National borders are just speed bumps on the information superhighway."

---
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"In fact, had Bancroft not existed,       potestas scientiae in usu est
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00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information