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

[Phillip Hallam-Baker]

On Fri, Apr 29, 2016 at 4:57 PM, arxlight <arxlight at arx.li> wrote:

>
>
> 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).


Well that should not be too hard to prove. In addition to his 5th amendment
privileges, the defendant's counsel can argue that either the information
on the disk is incriminating or it is not.

If the information is not incriminating then there is no reason to force
him to reveal it.

If the information is incriminating then the threat of jail is not going to
be effective as he is certain to go to jail and be forced to sign the
offenders register which is a life long punishment. The threat being used
to force him to incriminate himself is less than what he will suffer if he
does.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www.metzdowd.com/pipermail/cryptography/attachments/20160430/5839c6ef/attachment.html>