🚀 go-pugleaf

Carl Ellison speaks of the government attempting to compel you to
reveal your key as inconsistent with the Constitutional protections
against self-incrimination.

However, we do this all the time. A breath test for drunken driving is
also a compelled self-incrimination. The reason it's legal is that as
a condition of getting a driver's license you have to agree to waive
your self-incrimination rights in that matter. (Since the states have
the right to regulate drivers, I don't think that requirement to
get a driver's licence would be overturned on constitutional grounds.)

Now to the current matter. The Feds have the right to regulate
communications under the law. It would thus be a simple matter for
them to add a requirement to divulge any secret keys on proper
warrant, as a condition of your use of federally regulated (electronic)
communications media. It would be a simple matter to do the same as
a condition of your use of the federally provided mails. It would
probably be a simple matter to do a second-level version of the same
thing as a condition of your use of private carriers such as Federal
Express, which use the federally regulated highways and airlines. (They'd
have to require FedEx to require their customers to agree to.... etc.)

Thus the self-incrimination clause is easily circumvented with respect
to compelling keys to be divulged after due process. Thus the Feds
currently have all the legal weapons they need without any system of
key registration or national wiretap system. The latter are simply
(in my view) short-cuts they want to make their job easier, and to
prevent, rather than to prosecute crimes. 

The whole issue of crime prevention is probably a philosophical and
constitutional morass, touching on issues of prior restraint,
self-incrimination, due process, etc. counterpoised with issues of
saving lives, protecting public order, etc. To resolve these issues
we have the Constitution, the Supreme Court, and legal precedent.

If the Feds really were thinking, they'd use a "Luciano Law" approach
to cryptography in aid of crime and espionage. Recall that when they
couldn't get Lucky Luciano on direct criminal charges of murder, etc.,
they got him on tax evasion charges. Laws to require drug stamps for
illegal narcotics dealing are similar--if they apply you have them,
and if they don't you can add the penalties for failure to have the
stamp if they get caught. In the case of cryptography, all they need
is a law providing severe penalties for failure to divulge your key if
they have a properly executed warrant under probably cause--they don't
need to compel everybody (the ordinary citizen as well as the criminal
suspect) to register their keys in advance.

As to protecting the "suspect" who is not found guilty, we already have
adequate protections in the laws about pre-trial "discovery" to allow
a defendant to request that discovery matters be sealed and treated as
protected, and significant penalties for violating such restraints.

David