Re: "Contempt" charges likely to increase

[Brian Davis <bdavis@thepoint.net>]

On Fri, 5 Apr 1996, Hal wrote:

> I think Tim has hit the nail right on the head with this one.
> 
> I have been quite appalled to read the various analyses on the net (URLs
> not handy, but they have been posted here before I think) which conclude
> that compelled disclosure of a cryptographic pass phrase would probably
> be OK despite the Fifth Amendment.  This seems to be an area where there
> is widespread agreement based on recent precedent.
> 
> In the past, when crypto was not widely used, the issue didn't really
> come up very often.  If a criminal chose to write incriminating
> information diary or financial ledger, and it could be found in a
> search, then it was used as evidence against him.  At one time not even
> this was accepted but it has been this way for many decades.
> 
> But crypto, if it becomes widely and routinely used, raises the bizarre
> spectacle of criminals commonly being forced to produce information
> which will then be used against them!  Imagine if they'd found a file by
> OJ on his computer, encrypted, which he refused to decrypt.  The judge
> could actually jail him for contempt until he revealed the password.
> This could become a routine occurance in many kinds of crimes which rely
> on private records as evidence.
> 
> Currently, I don't think the subpoena power is widely used in criminal
> cases.  Rather, the prosecution relies on search warrants and the element
> of surprise to prevent the destruction of incriminating records.  I think
> there is recognition that in practice subpoenas would not be effective,
> that the records would not be produced, even if contempt charges were the
> result.

Subpoenas *are* widely used in white collar criminal investigations.  
Despite what many of you no doubt believe, investigators and prosecutors 
generally opt for the least intrusive method of getting the information 
needed for the investigation.  Certainly, third parties' records are 
generally subpoenaed rather than seized (absent some articulable reason to 
believe that the records will be altered or destroyed ...).  Even 
companies under investigation are frequently served with subpoenas, not 
warrants, as they usually try to appear to be cooperative while deciding 
which underling to throw to the wolves.

EBD


> If so, then probably the tactic will not be that effective in forcing
> people to reveal cryptographic keys.  Maybe if the jails start filling up
> with defendants who refuse to go along with such order, judges will
> decide that effective secrecy of records is now the new status quo.  The
> law will then once again extend the Fifth Amendment privileges to
> personal papers.
> 
> Hal
> 

Not a lawyer on the Net, although I play one in real life.
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