nothing so dramatic

[Jeffrey Walton]

On Thu, Apr 28, 2011 at 12:03 PM, M.R. <makrober at gmail.com> wrote:
> On 28/04/11 13:40, Johan Wevers wrote:
>>
>> I'm not so sure. Especially for human rights activists in, say, Syrie or
>> Tibet, might not want the government to know when they are mailing with
>> foreign journalists.
>
> Quite probably, but I do not consider myself qualified to comment
> on trials and tribulations of human rights activists in faraway lands,
> or, for that matter, on this continent. My concern is the result of
> a much more mundane set of circumstances.
>
> When legal "pressure to decrypt" is discussed, almost universally
> the issue becomes that of the right not to self-incriminate.
> Implicitly, it is assumed that the proceedings are part of some
> segment of the criminal law. However, it is not in the criminal
> but in the civil litigation that the courts can (and nowadays
> increasingly do) issue Subpoena Duces Tecum ("production of evidence")
> for plain-text of one of the litigant's communications. No right not
> to self-incriminate applies in such case. Where the record exists
> (just for an-instance) in a monetary hefty divorce litigation that
> there was encrypted communication with a third party, reasonably
> suspected of interfering in the marriage, the request from the
> opposing side for such duces tecum would not be hard to obtain.
> But there has to be a "reasonable expectation of relevance"; i.e., encrypted
> communication with a specific and relevant individual.
> Without it, request would likely be treated as nothing but a fishing
> expedition and rejected. I can easily imagine similar cases where
> the other communicating party is not Alice (36-29-38) but Bob, your
> accountant or stockbroker.
>

"A federal judge has ordered a criminal defendant to decrypt his hard
drive by typing in his PGP passphrase so prosecutors can view the
unencrypted files, a ruling that raises serious concerns about
self-incrimination in an electronic age."

'Judge orders defendant to decrypt PGP-protected laptop',
http://news.cnet.com/8301-13578_3-10172866-38.html.