What can the judge do to me?

[Black Unicorn <unicorn@schloss.li>]

An unnamed cypherpunk asked:

> I was just wondering how/if [International Union] fit[s] in with frequent 
>claim 'the judge can throw away the key' if he wants......

c'punks -

I've been involved in a private discussion with a list reader about 
the extent to which courts can impose contempt fines and sanctions.  I 
thought I would post the results to the list as many have expressed 
interest in the ways that courts might try to compel production of 
crypto keys or compel offshore e-cash institutions.  The bulk of my 
answer follows.

The key to limiting the ability of a court to summarily enter contempt 
sanctions has always been the classification of the sanctions.  
"Criminal" sanctions, may entitle the witness to a trial by jury. "For 
'serious' criminal contempts involving imprisonment of more than six 
months, these [procedural] protections include the right to jury 
trial. "  International Union, United Mine Workers of America, et al. 
v. Bagwell et al., 114 S. Ct. 2552 (1993)(hereinafter, International 
Union)(citing Bloom, 391 U.S., at 199; Taylor v. Hayes, 418 U.S. 488, 
495, 41 L. Ed. 2d 897, 94 S. Ct. 2697 (1974)).  "Civil" sanctions do 
not require such protections and can be imposed on the spot and 
without review.  "...civil contempt sanctions, or those penalties 
designed to compel future compliance with a court order, are 
considered to be coercive and avoidable through obedience, and thus 
may be imposed in an ordinary civil proceeding upon notice and an 
opportunity to be heard. Neither a jury trial nor proof beyond a 
reasonable doubt is required."  International Union, supra.

The court in International Union also makes a distinction between 
"direct" and "indirect" contempts.  "Direct contempts that occur in 
the court's presence may be immediately adjudged and sanctioned 
summarily."  International Union, supra.  These would certainly 
include refusing to reveal non-privileged information on the stand, 
and may include the refusal to reveal the passphrase to a crypto key 
while on the stand.

The court also recognizes that the indefinite confinement option is 
available to judges.  Specifically, "[t]he paradigmatic coercive, 
civil contempt sanction, as set forth in Gompers, involves confining a 
contemnor _indefinitely_ until he complies with an affirmative command 
such as an order "to pay alimony, or to surrender property ordered to 
be turned over to a receiver, or to make a conveyance." International 
Union, supra (emphasis added)(citing Gompers, 221 U.S., at 442).  See 
also, McCrone v. United States, 307 U.S. 61, 64, 83 L. Ed. 1108, 59 S. 
Ct. 685 (1939) (failure to testify).  Shillitani v. United States, 384 
U.S. 364, 370, n. 6, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966) 
(upholding as civil "a determinate 24 month sentence which includes a 
purge clause").

My favorite language from the court defining such sanctions is this:  
"In these circumstances, the contemnor is able to purge the contempt 
and obtain his release by committing an affirmative act, and thus 
"carries the keys of his prison in his own pocket."  International 
Union, supra (citing Gompers, 221 U.S., at 442, quoting In re Nevitt, 
117 Fed. 451 (1902)).  The court goes on:  "A contempt fine 
accordingly is considered civil and remedial if it either 'coerces the 
defendant into compliance with the court's order, [or] . . . 
compensates the complainant for losses sustained.'"  International 
Union, supra (quoting United States v. United Mine Workers of America, 
330 U.S. 258, 303-304).  And, "Where a fine is not compensatory, it is 
civil only if the contemnor is afforded an opportunity to purge."  
International Union, supra, (citing Penfield Co. v. SEC, 330 U.S. 585, 
590, 91 L. Ed. 1117, 67 S. Ct. 918 (1947)).

And on per diem fines, "Like civil imprisonment, such fines exert a 
constant coercive pressure, and once the jural command is obeyed, the 
future, indefinite, daily fines are purged."  International Union, 
supra.

The court makes a point to justify severe sanctions where testimony is 
sought, or the proceedings are threatened.  "The necessity 
justification for the contempt authority is at its pinnacle, of 
course, where contumacious conduct threatens a court's immediate 
ability to conduct its proceedings, such as where a witness refuses to 
testify, or a party disrupts the court... [t]hus, petty, direct 
contempts in the presence of the court traditionally have been subject 
to summary adjudication, 'to maintain order in the courtroom and the 
integrity of the trial process in the face of an 'actual obstruction 
of justice.'"  International Union, supra (quoting Codispoti v. 
Pennsylvania, 418 U.S., at 513 and citing numerous other sources).

Most interesting to the crypto crowd:

"Contempts such as failure to comply with document discovery, for 
example, while occurring outside the court's presence, impede the 
court's ability to adjudicate the proceedings before it and thus touch 
upon the core justification for the contempt power....  Similarly, 
indirect contempts involving discrete, readily ascertainable acts, 
_such as turning over a key_ or payment of a judgment, properly may be 
adjudicated through civil proceedings since the need for extensive, 
impartial fact-finding is less pressing."  International Union, supra 
(emphasis added).

Hence, International Union preserves very broad contempt sanctions 
which can be imposed without much review provided they fall into a 
rather wide "civil" categorization, rather than a "criminal" one.

I think it's clear, the court literally spells this out, that holding 
a witness indefinitely until he complies with court orders is within 
the discretion of a judge.  Compelling through sanctions the 
production of a "key" (though I'm not sure a crypto key is directly 
contemplated) is likewise clearly permitted.

---
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