[970] in cryptography@c2.net mail archive
Re: encryption by the wind in an open field
daemon@ATHENA.MIT.EDU (Black Unicorn)
Fri Jun 6 20:44:08 1997
Date: Fri, 6 Jun 1997 19:48:21 -0400 (EDT)
From: Black Unicorn <unicorn@schloss.li>
To: David Hayes <david.hayes@mci.com>
cc: Carl Ellison <cme@cybercash.com>, cryptography@c2.net
In-Reply-To: <m0wa8FY-000KkhC@switcheng.mci.com>
On Fri, 6 Jun 1997, David Hayes wrote:
> At 02:54 PM 6/6/97 -0400, Black Unicorn wrote:
> >Legal minds are used to considering evidence in terms of material things.
> >evidience is almost always something you can put in a bag. The rest is
> >testomony.
> >
> > [snip]
> >
> >> If a criminal writes that diary entry and remembers the key but refuses to
> >> hand it over, is he guilty -- and, if so, of what?
> >
> >Contempt of court. Destruction of material evidence to a crime.
> >Obstruction.
>
> The diary and key are two items. Your analysis confuses the two. Using your
> definitions from above:
>
> * The diary, encrypted or not, is evidence. It is a physical thing; a
> book, or a tape, or a file on a disk. The state has it, and is
> permitted to use it by right of a search warrant.
>
> * The decryption key is testimony. It is not a physical thing, just a
> piece of information.
The question was whether encryption itself was tantamount to the
destruction of plaintext.
Even using your analogy, I would argue that the location of funds in a
bank account is testmony, yet courts compell that kind of disclosure
often. Courts also compell defendants to sign papers waiving secrecy
provision where third parties hold said information.
>
> The state may not compell an accused to testify against themselves. If I
> were to write down my key, they could obtain a warrant and sieze the paper
> on which it was written. The paper, a physical thing, is evidence. If I tell
> someone else my key (I'm a stupid crook) the state may obtain testimony
> against me from the other person. But so long as the key remains a secret
> known only to me, the prosecutor will have to find some other excuse to lock
> me up.
This is far from settled in the context of encryption keys, BTW,
particularly where the release of a key doesn't itself constitute an
admission to some knowledge of criminal activity. (This is why tens of
messages sought to rehash what might happen if your passphrase was
"i.murdered.the.jerk.at.10:15.december.9th"
The two competing analogies are the location of funds, or the identity of
depositors (which have been compelled) and the combination of a safe
(which was note compelled). Neither are physical. You tell me which is
closer. (Hint, there is no answer until a certain few justices say there
is).
> >Really the leap from a locked safe containing the bookkeeping evidence of
> >illegal activity, and the encrypted disk is not a great one.
>
> The prosecutor obtains a warrant and siezes my safe, which he believes holds
> incriminating accounting record books. If I refuse to give the prosecutor
> the combination, he is still free to drill through the lock. If he succeeds,
> he can use whatever contents he finds inside.
Again, one cannot make the argument that evidence was destroyed if it was
locked away in a safe. One can quite easily make that argument if it was
encrypted with a now unavailable key. Again, look to courts fondness of
the material. They will likely see that some material like (and easy to
fathom) plaintext was "destroyed" (encrypted). Not merely locked away.
> The options haven't changed. All that's happened with crypto is that I've
> used a better safe. The controversy exists because prosecutors believe they
> don't have a big enough drill.
In fact, your safe is so good, it contributes to the destruction argument.
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