Re: Some legal trouble with TOR in France

[Mike Perry <mikepery@xxxxxxxxxx>]

Thus spake Ringo Kamens (2600denver@xxxxxxxxx):

> Also, they can put you on grand jury and give you obstruction of justice for
> refusing to talk.

According to wikipedia (http://en.wikipedia.org/wiki/Grand_jury):

"In all U.S. jurisdictions retaining the grand jury, the defendant has
the right under the Fifth Amendment not to give self-incriminating
testimony. However, the prosecutor can call the defendant to testify
and require the defendant to assert the right on a
question-by-question basis, which is prohibited in jury trials unless
the defendant has voluntarily testified on his own behalf."

A meandering writeup of the 5th ammendment at
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_U.S._Constitution
states:

"If the government gives an individual immunity, then that individual
may be compelled to testify. Immunity may be "transactional immunity"
or "use immunity"; in the former, the witness is immune from
prosecution for offenses related to the testimony; in the latter, the
witness may be prosecuted, but his testimony may not be used against
him. The Supreme Court has held that the government need only grant
use immunity to compel testimony. The use immunity, however, must
extend not only to the testimony made by the witness, but also to all
evidence derived therefrom."

So it would seem then that granting immunity to you to divulge your
passwords should protect you from anything found. This is probably the
most likely scenario if you are asked to provide (non-existent)
evidence against a Tor user and you have asserted your rights up to
the point of a court hearing. If you make the mistake of divulging
passwords/data to an officer before immunity was granted, you're
screwed.

> On 5/14/06, Eric H. Jung <eric.jung@xxxxxxxxx> wrote:
> >
> >I don't have the time to respond to all the points of your email except
> >the first/
> >
> >Federal Contempt of Court
> >http://www.bafirm.com/articles/federalcontempt.html
> >
> >"Although there is no statutory maximum limit regulating the amount of
> >time a contemnor can be ordered to spend in confinement (United States
> >v. Carpenter, 91 F.3d 1282, 1283 (9th Cir. 1996)), the requirement that
> >a jury trial be granted in criminal contempt cases involving sentences
> >over six months in jail acts as a check on this power." 67-79

Ah, thanks for the clarification. At least there is some check though.

> >> 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.

I should also add that they will probably tell you that if you just
let them see what they want, you can be out of there much quicker.
They usually will also ask you why you have anything to hide. This
has happened to friends of mine. It makes it very hard to say no to
search or interrogation.

In our case, the best response is "What you claim to be looking for is
not recorded by Tor. Furthermore, I have a lot of personal material on
that computer such as emails, pictures of my significant other, and
other private material that I do not believe you have the right to
look at simply because you want to. I would like to speak with a
lawyer."

A more general response probably would be something like "I resent the
idea that the police should be allowed to look through my personal
belongings simply because I have nothing to hide. I find this
offensive, and I feel it violates me personally. I do not consent to
search."

I do not think that Tor operators really have to worry about the
government using the full powers of the Patriot Act against us. The
amount of effort (and monetary expense!) required to do so simply does
not make sense, particularly because it accomplishes so little in the
context of a legitimate investigation against a Tor user.

Key word being legitimate.

I agree that the Patriot Act is a horrible thing, and makes an
excellent tool for the government to use to silence opposition. But I
like to think that Tor is a high enough profile project, and that the
administration is so completely unpopular now that a full
roving-wiretap, sneak and peek search, wireless keylogger, laser-mic
surveillance, CIA mind control attack on a Tor operator would be
political suicide, and would only serve as further example to the
unconstitutional nature of the act. At least this is how I sleep at
night ;)

The main danger is exactly what happened here. Some local cops show up
and try to take a machine and get you to provide data/keys because
they do not understand what Tor is or how it works. This is the
situation everyone who runs an exit node should be prepared for, and
should mentally rehearse.

As a preemptive measure, I have placed a form of disclaimer on my exit
node. It is at http://tor-exit.fscked.org. So far I have recieved
minimal complaints (only 2 - one turned out to be a mistake, and
the other was IRC spam). But my share of the tor bandwidth is very
small (40-60k/sec).

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