[4039] in cryptography@c2.net mail archive
Self Incrimination and Cryptographic Keys in US [was RE: France
daemon@ATHENA.MIT.EDU (Arnold G. Reinhold)
Thu Jan 21 21:50:51 1999
In-Reply-To: <Pine.LNX.4.05.9901202219400.20688-100000@dreams.res.cmu.edu>
Date: Wed, 20 Jan 1999 20:58:14 -0500
To: "AI mailer v .1 alpha" <tyme@dreams.res.cmu.edu>
From: "Arnold G. Reinhold" <reinhold@world.std.com>
Cc: cryptography@c2.net
At 10:27 PM -0500 1/20/99, AI mailer v .1 alpha wrote:
...
>
>Does anyone know if you have a safe in your house, and the police sieze it
>with a warant, whether they can demand you give them the combination?
>Assume it's extremely resistant to cutting with an oxy-acetylene torch,
>and it would take them weeks or months to get into it without the
>combination.
>
>Justin
There is an interesting paper on the general question "Self Incrimination
and Cryptographic Keys" by Greg S. Sergienko, 2 RICH. J.L. & TECH. 1
(1996), http://www.urich.edu/~jolt/v2i1/sergienko.html. At one point
Sergienko says:
"In Doe v. United States (Doe II), the Court recognized that "be[ing]
compelled to reveal the combination to his wall safe" would be testimonial
compulsion, but suggested that the key to a strongbox containing
incriminating documents would not be." -- "Doe v. United States, 487 U.S.
201, 210 n.9 (1988) (Doe II). The Court had earlier suggested that the
privilege could exist with respect to a combination to a safe. Couch v.
United States, 409 U.S. 322, 333 & n.16 (1973) (citing United States v.
Guterma, 272 F.2d 344 (2d Cir. 1959))."
Sergienko also discusses what happens if the Government grants use
immunity to force you to produce your cryptographic key.
He concludes:
"{72} Cryptography may provide a technical fix for Supreme Court decisions
allowing the invasion of one's private papers. However, the effectiveness
of that fix will depend on whether the Court holds that use immunity from
the compulsory production of a cryptographic key extends to the
incriminating documents decrypted with the key. Logic suggests that the
Court should so hold.
{73} However, the Court's inconsistencies in this area suggest the limits
of logic. The Court has consistently reconstructed Fourth and Fifth
Amendment precedents to move away from historical practice. This
reconstruction is in part responsible for the Court's inconsistencies. ..."
Presented for what it is worth by a non-lawyer,
Arnold Reinhold
