🚀 go-pugleaf

In article <1992Nov2.084229.1@zodiac.rutgers.edu> leichter@zodiac.rutgers.edu writes:
>Imagine that Richard Nixon, in making his tapes, had access to a DAT recorder
>with an encryption chip.  Congress subpeonas the tapes; he delivers tapes that
>sound like white noise.  What are the keys, Mr. Nixon?  No, I won't tell you
>that, Fifth Amendment.

Not necessarily.  If Congress were willing to give Nixon immunity
against *criminal* prosecution for what this information would reveal,
then he could not take the Fifth.  And Congress could even have used
it to impeach and remove him from office, as indeed his "smoking gun"
tapes effectively did. As satisfying as it might have been to toss
Nixon in jail, you have to admit that just getting him out of office
was much more important to the country.

>Or imagine that Ollie North's famous deleted mail messages had been encrypted.
>Or, to take a recent example, that Caspar Weinberger had used a palmtop to
>keep his personal diary, and all entries in it were encrypted.

This comes with the territory. Either everyone has the right to encrypt,
including slimy politicians, or no one will.

What about all of the face-to-face conversations Ollie had that were
never recorded anywhere? Isn't that a loophole? Perhaps we should
require everyone to carry personal bugs 24 hours/day.

>All these examples are from the political domain, because it's those cases
>that get wide publicity, so all of you know about them.  But there is nothing
>unique about the political domain.  How far would investigation of the S&L's
>gone if they had encrypted their records, and had a right to refuse to reveal
>the keys?

Again, is it so important to actually prosecute these people? Or is it
more important to get the facts out in front of the people so the
politicians responsible could be held accountable at the next election
(or sooner, if it was warranted)? If the latter, then the Fifth need
not be an obstacle -- just grant immunity.

Remember that many of these scandals are really institutional problems
with institutional solutions. It may be more emotionally satisfying to
nail a few culprits to the wall, but fixing the system instead has a
better chance of keeping it from happening again.

>Crime on a large scale, like any other
>enterprise on a large scale, requires record keeping, and it is those records
>that, when seized, form the evidence.  In a world where those records are all
>encrypted, and no one is under any obligation to reveal what the keys are,
>prosecution, even detection, of such crimes would be just about impossible.

A misstatement. It is not true that "no one (would be) under any
obligation".  If you can identify one of the members of the conspiracy
and compel him/her to reveal the key in exchange for immunity, you can
use it against the others.

>PS:  Much has been made in this discussion about the Fifth Amendment.  The
>Fifth Amendment does NOT protect "what is in your mind".  It protects you
>against self incrimination.  The courts have always had the right to compel
>you to reveal what you know about a crime SOMEONE ELSE committed - even your
>closest friend.

Exactly. And this is why cryptography is of such limited usefulness in
actually protecting a criminal conspiracy, and why its "threat" to
legitimate law enforcement is so greatly overstated.

Phil