🚀 go-pugleaf

Uri Blumenthal asks why there is a need for the government to be able to tap
encrypted communication - why not use the traditional technique of bugging the
place the communication takes place?  There are a couple of possible answers
to this - with cellular phones, where do you put the bug?  Which is really
more intrusive anyway? - but really he's getting at a more fundamental issue.

Most of the debate has centered on whether the government should be allowed to
require access to keys for COMMUNICATION.  Here, it can be hard to see just
how much need there is, because in fact even today wiretaps are relatively
rare, and it's difficult to know how important they are.  But there's another
situation where the case is different:  Encrypted record keeping.

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.

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.

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?

When people think of crime, they think of the little guy with a gun holding
up a liquor store.  No need for sophisticated investigation here.  But the
BIG crimes, the ones that involve huge amounts of money, the ones that hurt
large numbers of people at a time, are white collar crimes.  Fake insurance
companies.  Stock frauds.  All kinds of scams.  Prosecuting such cases is
impossible without a "paper trail".  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.

In the past, a large scale enterprise, criminal or otherwise, has required
that large numbers of people have access to the important data.  Clerks had to
file the papers detailing the frauds.  If the papers were suitably rigged,
the clerks might not realize what they were filing - but they might still
remember it, or keep a copy of something they were working on.  It's from
little things like that that white collar crime cases are made.  With computer
technology, however, many fewer people are needed, and the very security
systems we design to keep the bad guys out can be used by those bad guys to
keep EVERYONE out.  These days, many people who aren't really in on the crime
have to have access to "sensitive" information to keep the enterprise going.
With computerization, only a small number of people who are really in the know
(and, since they are part of the crime, have Fifth Amendment protection) need
have such access.

The next time you complain about, say, a company keeping records about you
that you consider private, consider what it would be like if THEY could keep
all information about what they are doing encrypted, absolutely safe from
"prying" by you when you try to sue them.
							-- Jerry

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.  Even where "what is in your mind" might incriminate you, the
government can grant you immunity from prosecution and then compel you to
talk.  This is a common means of forcing one member of a conspiracy to testify
against the others.  The immunity given can be limited:  The government can't
use it against you, but they can use evidence they obtained independently to
convict you.  That's how Ollie North was compelled to testify to Congress.
That's why he could, despite this testimony, still be charged and convicted.
(The conviction was overturned because the government couldn't adequately
demonstrate that they hadn't actually used North's compelled testimony against
him in any way.)

Oh, and if you think "well, it'll be better for me to refuse anyway - it'll
just be a couple of days in jail" - think again.  A judge can hold you in jail
essentially indefinitely.  (There was a celebrated case of a woman who refused
to reveal the whereabouts of her child, claiming her ex-husband was abusing
her.  She was in jail for several YEARS, and was only freed as the result of a
new law that, for the first time, placed a limit on such jailings.  This law
was passed in direct response to this case; I don't know how broadly it is
drafted, but even when it applies, it still could leave you as a guest of the
government for quite some time.)