Re: Is there a lawyer in the house?

[Greg Broiles <greg@ideath.goldenbear.com>]

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Timothy C. May wrote:
> Sameer Parekh writes:
> >How is this different from
> >Bob has key. Cop want's Bob's key. Cop tells Bob "I want your key,
> >you need to give it to me. I don't have a warrant."
> >

> But I share Sameer's confusion. If cops show up at my door, they must, it
> seems to me, present proper warrants before they can _enter_ my premises,
> or _search_ my premises. Something given to me, whether a letter, a key, a
> photo, etc., is essentially *my property* and may not simply be taken away
> from without due process.

What's important here is the difference between things and information -
if the cops want to get *things* in your possession, they need a warrant
or consent or exigent circumstances or whatever. If they want to get 
*information* in your possession, they can subpoena you and make you talk 
(or show them the papers/records/whatever, modulo the Fifth amendment, modulo
immunity). Either way, the standard for due process (essentially nothing
for a subpoena - "more likely than not will lead to the discovery of fruits
of/evidence of a crime" for a warrant) is pretty minimal.

But, it's worse than that: as a matter of federal law, if I write "I, Greg
Broiles, killed Jimmy Hoffa and hid his body in one of the concrete columns
used to construct Giants Stadium", and give that piece of paper to you, and
cops search your house illegally and find that scrap of paper, the information
on the paper (if not the paper itself) can be used against me, even though
it was found in an illegal search. I wouldn't have "standing" (e.g., a legal
basis to contest the search) because federal law doesn't think I have a 
privacy interest in the stuff in your house.

I think that's the tricky bit behind the idea that there's no (personal)
expectation of privacy where a key is given to an escrow agent - the standing
requirement. State constitutions and statutes may provide a higher level of
protection - Oregon's constitution, for example, is interpreted to be more
generous re who's got standing to contest the legality of a search.

It occurs to me that the owner of the key might have a good argument that
they've got "third party standing", where they can essentially adopt the
position of the key's owner, because the key's owner is in a position such 
that they can't do a good job of representing their own interests, and the
third party will. (e.g., the doctor(?) in _Eisenstadt v. Baird_) The owner
of the key (at least if they're anonymous, and the key server is served with
a subpoena to "disclose the 'true name' of the owner of key 0x58ddf30d") may
wish to avoid revealing hirself. Hmm. That, of course, assumes that the
escrow holder feels like fighting the subpoena - perhaps that's something to
look for when you go escrow shopping.

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