[Cryptography] US Case: Infinite Jail Contempt for Disk Crypto, 5th Amndmnt, All Writs, FileVault, Freenet CHKs

arxlight arxlight at arx.li
Fri Apr 29 16:57:01 EDT 2016



On 29/04/16 09:51, Yui Hirasawa wrote:

>> Actually, it's reported that he claims not to know the password.
>>
>> "...Rawls has a clean record and doesn’t know the passwords
>> prosecutors are looking for, the defense argues" (http://gizmodo.com/
>> child-porn-suspect-held-in-solitary-for-7-months-for-no-1773403443)
> 
> This could set a VERY dangerous precedent.

Not really.  This has been the state of affairs in the United States for
a long time.

Generally speaking incarceration to compel testimony (i.e. contempt
sanctions) hinges on the judge's belief:

1. That the defendant / witness actually has the information sought.
2. That the defendant can be compelled with incarceration to produce it.

Failing this the incarceration becomes punitive.  Strictly speaking,
that's outside the bounds of a judge's power (imposing punitive
penalties without a verdict).

The classic example is the tax evading winner of a foreign lottery who
stood in front of a judge and swore he would never disclose where he
stashed the cash or voluntarily sign a waiver of secrecy because, though
he might rot in jail for 20 years, he only had about 15 to go given his
health and all his 9 children would benefit immeasurably if he did not
surrender the details.

At that point the defense argued, quite rightly, that any further
incarceration would be punitive, rather than designed to and likely to
compel disclosure, and therefore the court no longer had authority to
detain the defendant.

This, of course, depends on the judge believing in the defendant's
resolve.  (Though I recall that defendant walking soon after).


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