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[FYI] (Fwd) can the government require your keys?

------- Forwarded message follows -------
From:           	"Steven M. Bellovin" <smb@research.att.com>
To:             	cryptography@c2.net
Subject:        	can the government require your keys?
Date sent:      	Fri, 28 Jan 2000 14:11:46 -0500

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

According to an article in the NY Times CyberLaw Journal (see 
the 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.

  --Steve Bellovin

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