nothing so dramatic

M.R. makrober at
Thu Apr 28 18:03:02 CEST 2011

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.

Mark R.

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