From: "Steven M. Bellovin" <email@example.com>
Something that's been debated endlessly on the net is whether or not the (U.S.)
government can compel someone someone to turn over their keys. Some
(including lawyers) have said yes, on the grounds that a key is
non-testimonial. Others (again, including lawyers) have pointed out that a
key may not be testimonial, but that a defendant's knowledge of it is, and
that the key is therefore covered by the Fifth Amendment protection against
self-incrimination. There's now a new wrinkle.
According to an article in the NY Times CyberLaw Journal (see
issue arose during the Mitnick case. However, rather than demanding the key
under penalty of a contempt citation, the prosecutors declined to turn the
encrypted files over to the defense team. Although Rule 16 of the Federal
Rules of Criminal Procedure require the government to turn over documents that
"were obtained from or belong to the defendant", the prosecutor argued that
the government didn't really possess the files, since they couldn't read them.
They further claimed that the files might have illegally-obtained information
or "for all we know, it could be plans to take down a computer system." The
information "might be dangerous"; it was likened to a defendant asking for a
coat back without the government knowing if there was a pistol in the pocket.
The judge sided with the prosecutors. Unfortunately, the ruling probably
can't be appealed at this point, given the plea bargain. But it will come up
again; the Clinton administration is apparently planning on introducing a bill
on access to keys.
This archive was generated by hypermail 2b29 : Thu Jul 27 2000 - 14:02:52 MDT