Re: "Contempt" charges likely to increase

[tcmay@got.net (Timothy C. May)]

At 6:19 PM 4/6/96, Black Unicorn wrote:
>On Fri, 5 Apr 1996, Timothy C. May wrote:
>
>> If the secrets or assets _cannot_ be retrieved--a scenario which is
>> possible, if the protocol is so written (clauses for court action)--then
>> contempt charges are meaningless and would not stand, IMNALO.
>
>I'm not sure an appeals court will be particularly receptive to this
>argument.  I'll do a little research on the issue next week but I suspect
>that appeals courts will be reluctant to overturn contempt charges on
>this basis.  Firstly, appeals courts generally do not do their own
>findings of fact, but take the lower courts findings for granted.
>Secondly, in the absence of serious error, higher courts are unlikely to
>give their fellows a hard time.  The culture of the jurist as it
>were.

Well, I think this will be a matter of time and education. The courts have
not yet been presented with what we might call "unbreakable protocols" for
the holding of information. Existing secret holding "arrangements" (I'll
call them "arrangements" to make their informal, human-mediated nature more
clear) have typically involved secrets (information, money, etc.) held by
some other party subject to recall/retrieval by some form of instructions
from the owner/depositor.

The canonical example being a Swiss bank account, with the bank responding
when the proper numbers or signatures or whatever are presented. (Things
may have changed as the Swiss banks have become more compliant with U.S.
demands, but the example still stands.)

This model, is, I contend, the model with which courts are familiar. They
know that Alice can retrieve the funds, so they simply order her to. If she
does not comply, contempt of court. Q.E.D.

What of a different model? What if, say, her funds are in a "time lock
deposit," with the bank unwilling or even unable (cryptographic protocols
involving multiple key holders) to retrieve the funds until, say, 2010?
Even if she is being tortured to death and pleading with the
Gemeinschaftbank of Zurich to please, pretty please, release her funds,
they cannot.

It may take some convincing, and some education of the court (a la the
education that is slowly happening, as in the CDA case), but eventually it
will be realized that "contempt of court" is not applicable.

(The angle may be felonize the use of such "unbreakable" protocols, but
this is part of a larger story....)

>I might add that the Cayman Islands are full of trust companies with
>provisions which forbid the disclosure of data to a client who is
>coerced.  A law on the books refuses to recognize "consent" orders made
>under judicial compulsion.  This would give the appearance of total
>unavailability of evidence and suggest the futility of contempt
>charges.  Yet courts have still, and with no small measure of success,
>imposed sanctions on witnesses so protected.

I haven't studied such cases, but my hunch (SWAG) is that their are "leaks"
in such offshore deposits, that the courts have actually had some measure
of success in getting the funds that are reputed to be irretrievable.

In any case, if and when the jails fill up with up with people who _cannot_
comply with a court order, something will change.

(Note that I've never claimed such "unbreakable protocols" will become the
norm. Many of us, myself included, would rather have a way to pay off the
government to settle some tax evasion charge, or whatever, than sit in jail
for an unlimited time because we absolutely cannot retrieve the funds....)

--Tim May

Boycott "Big Brother Inside" software!
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