Legal compulsion and self-incriminating passphrase

[David Swarbrick]

In message <000401bda990$abea84a0$dc77e4d4@cpsb>, Caspar Bowden
<cb@fipr.org> writes
>An interesting point on these issues is raised (in the US context) in:
>http://www.urich.edu/~jolt/v2i1/sergienko.html
>
>"A cryptographic key need not have testimonial content. A key can be any
>word, phrase, or a series of randomly chosen digits. However, one can
>imagine a cryptographic key that has been given an incriminating,
>testimonial content by making it a word or phrase that confesses to a crime.
>Many seldom-enforced statutes[16] enable one to confess to a crime in one's
>cryptographic key, thereby triggering potential criminal liability and
>therefore the protection of the Fifth Amendment"
>
>If it is the case (or claimed by the defendant) that the passphrase is a
>(true) confession to a crime, would this invoke any protection against
>self-incrimination under UK law? The difficult case is when the crime of
>which the prosecution seeks evidence in the encrypted data, is much more
>serious than the crime confessed to in the passphrase (e.g. "I dropped
>litter in Trafalgar Square on dd/mm/yy").
>
>Does the relative seriousness of the crimes make any difference ?

I've heard of grasping at straws, but ...

We have nothing to which a fifth amendment could be applied. The
statement that your passphrase contained a confession would merely be
seen as a source of glee by any passing officer. You have already made
the statement when you used it, and if it wasn't true when you made it
you woldn't be worried about it. They are not asking you to make a new
statement but executing a search on a confession already made, and which
would not have any protection.

In any world strange enough for this issue to arise, the police would
justifiably see this as a freebie.


-- 
David Swarbrick, Solicitor. Brighouse, West Yorkshire.
Tel: +44(0)1484 722531 Fax: +44(0)484 716617 Pager 04325 349742
e-mail david@swarb.demon.co.uk
URL http://www.swarb.co.uk/swarbrick/ - home of the law-index to 8100+ cases
'damn fine webbery"