disclosure of crypto keys

[David Swarbrick]

In message <A7642A55475@frw3.kub.nl>, Bert-Jaap Koops <E.J.Koops@kub.nl>
writes
> David Swarbrick <david@swarb.demon.co.uk> wrote:
>> Is it still self incrimination to hand over existing evidence? I think
>> there is a clear argument to say that the privilege against self
>> incrimination prevents only a requirement to provide a new statement.
>[snip]
>> I suspect that the argument about the right against self-incrimination
>> is a false trail.
>Not quite. It is true that the privilege against self-incrimination 
>prevents only the mandatory producing of "testimonial statements". US 
>case law provides good guidance on this. Tax returns are not 
>testimonial evidence (Fisher), nor are business documents (Doe) or an 
>authorization (for a bank to disclose information) which the 
>suspect was compelled to write (Doe II). However, the _act of 
>producing_  may be testimonial and incriminating, if in handing 
>something over the holder admits to possession of the document. Only 
>if it is a foregone conclusion that the holder possess a document, 
>is handing it over not testimonial. (Doe)
>(By and large the same holds for European case law, as I read it.)
>
>That is why I conclude that handing over a crypto key is compatible 
>with the privilege only if there is sufficient evidence ("a foregone 
>conclusion") that the suspect has got the key and knows the 
>passphrase. Otherwise, the _act of producing_ the key would testify 
>to his knowledge of it.
>
Bert-Jaap

Your erudition about US law is awesome, and I take the logic of what you
say. I have to say, though, that it is likely to be of very little
persuasive value in the UK, and even less so in Europe.

We do not have anything like the same well developed and defined law
protecting against self incrimination. My experience and understanding
of English law and of English judges suggests that they would not listen
too keenly to such refinements, and would probably go out of their way
to prevent them getting between the police and a needed conviction.

Whether and how much it will change with the incorporation of the Euro
Convention on Human Rights remains to be seen.

-- 
David Swarbrick, Solicitor. Brighouse, West Yorkshire.
Tel: +44(0)1484 722531 Fax: +44(0)1484 716617
e-mail david@swarb.demon.co.uk 
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