Re: Some legal trouble with TOR in France

[Mike Perry <mikepery@xxxxxxxxxx>]

Thus spake Eric H. Jung (eric.jung@xxxxxxxxx):

> > Tony's point was that you could arrange not to have the 
> authentication
> > tokens anymore. You better hope they believe you when you say you
> > don't have it, though.
> 
> >Not having the authentication tokens counts as refusing to surrender
> >them.
> 
> Per US law, if a judge subpoenas you to hand them over and you refuse
> and/or remain silent, it means indefinite jail time (until you hand
> over the tokens) and/or fines.

Where is your source on this? As I understand it, there are a few
fundamental principles of the US legal system that should render this
statement completely false. One is Habeas Corpus.. You can't just
throw someone in jail indefinitely without a criminal charge and a
trial. http://en.wikipedia.org/wiki/Writ_of_habeas_corpus 

Though it seems Bush&Co are violating it with "enemy combatant"
charges, I do not think they have the political power (at least
anymore) to name an anonymity provider as an "enemy combatant"
(especially if they are a natural born US citizen). The same applies
to the 72 hour warrant deal, at least as far as I can tell from
http://www.fff.org/comment/com0601c.asp

Second, if it is a criminal charge, you are not under any obligation
to testify against yourself in a criminal court of law (5th
ammendment). There are various exceptions to this, main one being if
you are not the person charged of the crime (though I think you can
still claim that such testimony may incriminate you for unrelated
matters). I suppose it could also be argued that the passphrase does
not count as testimony, but it sure seems like it is.

Finally, some googling on subpoena compliance seems to indicate that
punishment for subpoena non-compliance is 'contempt of court' charge
and fines.

http://www.rcfp.org/cgi-local/privilege/item.cgi?i=questions

That page advises you not to answer any subpoenas without challenging
them first, among other things (ie one state's court cannot usually
subpoena someone from another state). Contempt of court charges for
non-compliance may be repeated, but any contempt law I can find on
the web has some form of maximum limit. The longest I've seen so far
is North Carolina, which is a max of 1yr in 90 day increments:
http://www.rosen.com/ppf/cat/statco/laws.asp


Also, dunno how accurate it is, but Wikipedia seems to claim that the
key disclosure provisions of the RIPA (Part III) are not yet in force
in the UK:

http://en.wikipedia.org/wiki/Regulation_of_Investigatory_Powers_Act_2000




We seriously have to watch our paranoia on this one. This is one of
those situations that if we believe we have no rights, it will be very
easy to knock us over, simply by playing off our fears and demanding
keys without any legitimate basis to do so.

If any Tor operator is arrested/detained in the US, they would do well
to refuse to surrender any passphrase until they are actually in court
and ordered to do so by a Judge (and then only after voicing protest,
to allow for clear appeal to a higher court). Cops will probably just
lie to you and try to convince you that you are required on the spot.
Ask for a lawyer immediately. 

This is not just to protect the Tor network either. With computer laws
as crazy as they are, and with the IPPA coming down the road, soon
simply having something like an Open Source DVD player or archiver on
your machine will be enough to land you in jail for a while, if it's
not already...

-- 
Mike Perry
Mad Computer Scientist
fscked.org evil labs