[1002] in cryptography@c2.net mail archive
Re: Undecrypted cyphertext (was: Re: Dorothy and the four Horseman)
daemon@ATHENA.MIT.EDU (Phil Karn)
Thu Jun 12 18:04:27 1997
Date: Thu, 12 Jun 1997 11:35:11 -0700 (PDT)
From: Phil Karn <karn@qualcomm.com>
To: sinster@darkwater.com
CC: cryptography@c2.net
In-reply-to: <m0wa4rY-0005rTC@scintilla.darkwater.com> (sinster@darkwater.com)
>the courts have already ruled that a defendant can refuse to hand over
>their cryptographic keys on 5th amendment grounds. Now that doesn't
I too would like to see a cite.
My understanding of the issue, gleaned largely from a conversation
with Mike Godwin a few years ago, is that this issue has never been
decided by the courts. The closest they've come is "dicta" (a side
discussion) that a defendant could not be compelled to divulge the
combination to a safe. But dicta is not binding precedent.
I do note that the federal government computer search and seizure
guidelines written by FBI, SS et al *do* currently treat encryption
keys and passwords as protected by the 5th amendment. Since these
people are not noted for their generous interpretation of civil
rights, I suspect they adopted this position largely for strategic
reasons. They don't want to get drawn prematurely into a
precedent-setting challenge in some garden-variety harmless teenage
hacker case where the judges might look more favorably at upholding
the 5th amendment.
They'll wait until they have a truly inflammatory case, a major
terrorist bombing, say. Then they'll use that to argue that applying
5th amendment protections to an encryption key (*any* encryption key)
will mean the swift end of western civilization.
Phil
