FITUG e.V. Förderverein Informationstechnik und Gesellschaft

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 wrinkle.

According to an article in the NY Times CyberLaw Journal (see http://www.nytimes.com/library/tech/00/01/cyber/cyberlaw/28law.html), 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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