diff --git a/MultiObfuscator/MultiObfuscator.exe b/MultiObfuscator/MultiObfuscator.exe new file mode 100644 index 0000000..c0098ed Binary files /dev/null and b/MultiObfuscator/MultiObfuscator.exe differ diff --git a/MultiObfuscator/MultiObfuscator_license.txt b/MultiObfuscator/MultiObfuscator_license.txt new file mode 100644 index 0000000..43488da --- /dev/null +++ b/MultiObfuscator/MultiObfuscator_license.txt @@ -0,0 +1,38 @@ + +************************** +** ENGLISH - 04/03/2014 ** + +Project/Software name: MultiObfuscator v2.00 +Contact: "EmbeddedSW" +Company: EmbeddedSW.net + +THIS IS A FREEWARE SOFTWARE + +This software is released under: + +* CC-BY 4.0: http://creativecommons.org/licenses/by/4.0/ + +You’re free to copy, distribute and make commercial use +of this software under the following conditions: + +* You have to cite the author (and copyright owner): EmbeddedSW.net +* You have to provide a link to the author’s Homepage: http://www.embeddedsw.net + +*************************** +** ITALIANO - 04/03/2014 ** + +Progetto/Nome del software: MultiObfuscator v2.00 +Contatto: "EmbeddedSW" +Compagnia: EmbeddedSw.net + +QUESTO È UN SOFTWARE FREEWARE + +Questo software è rilasciato con licenza: + +* CC-BY 4.0: http://creativecommons.org/licenses/by/4.0/ + +Siete liberi di copiare, distribuire e fare uso +commerciale di questo software alle seguenti condizioni: + +* Dovete citare l’autore (e detentore del copyright): EmbeddedSW.net +* Dovete fornire un link alla Homepage dell’autore: http://www.embeddedsw.net diff --git a/MultiObfuscator/html/MultiObfuscator_Cryptography_Home.html b/MultiObfuscator/html/MultiObfuscator_Cryptography_Home.html new file mode 100644 index 0000000..c335f8d --- /dev/null +++ b/MultiObfuscator/html/MultiObfuscator_Cryptography_Home.html @@ -0,0 +1,323 @@ + + + +MultiObfuscator - Cryptography & Obfuscation + + + + + + + + + + + +
+ + +
+ + + + + + +
+ + + + + + +
+
+ +
+ +

MultiObfuscator 2.00 - Yet not another cryptography SW

+ +
+ + + + + +
+ +

+zip.jpg MultiObfuscator +CC-BY 4.0 + / lambda.jpg Source Page +

+ +
+ +
+ + + + + + +
MultiObfuscator.jpg 

+Check for more business services:
+Hardware for Independent Deniable
+Cloud Data Hiding & Obfuscation

 MultiObfuscator.jpg
+
+ +
+ +
+ + + + + + + + + +
+ +

MultiObfuscator is a professional cryptography tool:

+ +
+ +
    +

  • HW seeded random number generator (CSPRNG)

    • +

  • Deniable cryptography

    • +

  • Up to 256Mb of secret file (binary mode)

    • +

  • Up to 256Kb of secret text (text/email mode)

    • +

  • Whitening selection level

    • +

  • Modern multi-cryptography (16 algorithms)

    • +

  • Multi-layered data obfuscation (4 passwords)

    • +

  • Chi-squared cryptanalysis resistance

    • +
+ +
+ +

Unique layers of security and obfuscation:

+ +
+ +
    +

  • 256bit+256bit symmetric-key cryptography
    (with KDF4 password extension)

    • +

  • 256bit symmetric-key data scrambling
    (CSPRNG-based shuffling)

    • +

  • 256bit symmetric-key data whitening
    (CSPRNG-based noise mixing)

    • +

  • Adaptive Chi-squared correction

    • +
+ +
 
+ +

MultiObfuscator is a portable/stealth software:

+ +
+ +
    +

  • Native portable structure
    (no installation, registry keys, .ini files)

    • +

  • Runs in user mode with DEP on

    • +
+ +
+ +

MultiObfuscator is freeware:

+ +
+ +
    +

  • Spyware/adware-free

    • +

  • Fully redistributable

    • +

  • OpenSource core crypto-library (libObfuscate)

    • +
+ +
+ +
+ + + + + +
+ +

+flag_uk.png Manual + / flag_it.png Manuale + / pdf.jpg Internet Review +

+ +

 

+ +

+torrent.jpg Torrent + / xml.jpg Pad + / MultiObfuscator.jpg Screenshot + / MultiObfuscator.jpg Icon +

+ +

 

+ +

+lambda.jpg Legal coercion + / lambda.jpg Physical coercion +

+ +

 

+ +

+lambda.jpg Cypherpunk + / lambda.jpg Humans: The Weakest Link +

+ +

 

+ +

+security.png +

+ +
+ +
+ +
+

MultiObfuscator is a professional cryptography tool, with unique features you won't find among any +other free or commercial software. MultiObfuscator is 100% free and suitable for highly sensitive data +storage and transmission.

+ +
+ +
    +

  • Layers of security:
    +Data is encrypted (1), scrambled (2) and whitened (3).

    • +
+ +
+ +
    +

  1. Layer 1 - Modern multi-cryptography:
    +A set of 16 modern 256bit open-source cryptography algorithms (chosen from +AES Process [1997-2000], +NESSIE Process [2000-2003] and +CRYPTREC Process [2000-2003]) +has been joined into a doublepassword multi-cryptography algorithm (256bit+256bit) +: AES +/ Anubis +/ Camellia +/ Cast-256 +/ Clefia +/ FROG +/ Hierocrypt3 +/ Idea-NXT +/ MARS +/ RC6 +/ Safer+ +/ SC2000 +/ Serpent +/ Speed +/ Twofish +/ Unicorn-A

    2. + +

  2. Layer 2 - CSPRNG based scrambling:
    +Encrypted data is always scrambled to break any remaining stream pattern. A new +cryptographically secure pseudo random number generator (CSPRNG) is seeded with a third +password (256bit) and data is globally shuffled with random indexes.

    3. + +

  3. Layer 3 - CSPRNG based whitening:
    +Scrambled data is always mixed with a high amount of noise. A new CSPRNG is seeded with a +forth password (256bit) and data is bit-by-bit split according to a random permutation.

    4. +
+ +
+ +
    +

  • Extra security - Deniable cryptography:
    +Top secret data can be protected using less secret data as a decoy.

    • + +

  • Source code:
    +This program can be considered as a simple Windows GUI to the libObfuscate +system-independent open-source library. Users and developers are absolutely free to link to the +core library (100% of the cryptography & obfuscation code), read it and modify it.

    • +
+
+ +
+ +
+MultiObfuscator_Screenshot.jpg +
+ +
+ + + +
+

+multiobfuscator_cryptography_video_official_demo.jpg
+Video Manual - EN

+
+ +
+ +
+
+ + + + + + +
+ + +
+ + +
+ + + + diff --git a/MultiObfuscator/html/doc/MultiObfuscator_Help_EN.pdf b/MultiObfuscator/html/doc/MultiObfuscator_Help_EN.pdf new file mode 100644 index 0000000..7221e8c Binary files /dev/null and b/MultiObfuscator/html/doc/MultiObfuscator_Help_EN.pdf differ diff --git a/MultiObfuscator/html/doc/MultiObfuscator_Help_IT.pdf b/MultiObfuscator/html/doc/MultiObfuscator_Help_IT.pdf new file mode 100644 index 0000000..bd2fdab Binary files /dev/null and b/MultiObfuscator/html/doc/MultiObfuscator_Help_IT.pdf differ diff --git a/MultiObfuscator/html/doc/cypherpunk_manifesto.html b/MultiObfuscator/html/doc/cypherpunk_manifesto.html new file mode 100644 index 0000000..ed86a68 --- /dev/null +++ b/MultiObfuscator/html/doc/cypherpunk_manifesto.html @@ -0,0 +1,54 @@ + + + +A Cypherpunk's Manifesto + + + + + +
+

A Cypherpunk's Manifesto

+ +

+By Eric Hughes: www.activism.net
+Hosted at: EmbeddedSw.net - OpenPuff
+Hosted at: EmbeddedSw.net - MultiObfuscator +

+
+ +

Privacy is necessary for an open society in the electronic age. Privacy is not secrecy. A private matter is something one doesn't want the whole world to know, but a secret matter is something one doesn't want anybody to know. Privacy is the power to selectively reveal oneself to the world.

+ +

If two parties have some sort of dealings, then each has a memory of their interaction. Each party can speak about their own memory of this; how could anyone prevent it? One could pass laws against it, but the freedom of speech, even more than privacy, is fundamental to an open society; we seek not to restrict any speech at all. If many parties speak together in the same forum, each can speak to all the others and aggregate together knowledge about individuals and other parties. The power of electronic communications has enabled such group speech, and it will not go away merely because we might want it to.

+ +

Since we desire privacy, we must ensure that each party to a transaction have knowledge only of that which is directly necessary for that transaction. Since any information can be spoken of, we must ensure that we reveal as little as possible. In most cases personal identity is not salient. When I purchase a magazine at a store and hand cash to the clerk, there is no need to know who I am. When I ask my electronic mail provider to send and receive messages, my provider need not know to whom I am speaking or what I am saying or what others are saying to me; my provider only need know how to get the message there and how much I owe them in fees. When my identity is revealed by the underlying mechanism of the transaction, I have no privacy. I cannot here selectively reveal myself; I must always reveal myself.

+ +

Therefore, privacy in an open society requires anonymous transaction systems. Until now, cash has been the primary such system. An anonymous transaction system is not a secret transaction system. An anonymous system empowers individuals to reveal their identity when desired and only when desired; this is the essence of privacy.

+ +

Privacy in an open society also requires cryptography. If I say something, I want it heard only by those for whom I intend it. If the content of my speech is available to the world, I have no privacy. To encrypt is to indicate the desire for privacy, and to encrypt with weak cryptography is to indicate not too much desire for privacy. Furthermore, to reveal one's identity with assurance when the default is anonymity requires the cryptographic signature.

+ +

We cannot expect governments, corporations, or other large, faceless organizations to grant us privacy out of their beneficence. It is to their advantage to speak of us, and we should expect that they will speak. To try to prevent their speech is to fight against the realities of information. Information does not just want to be free, it longs to be free. Information expands to fill the available storage space. Information is Rumor's younger, stronger cousin; Information is fleeter of foot, has more eyes, knows more, and understands less than Rumor.

+ +

We must defend our own privacy if we expect to have any. We must come together and create systems which allow anonymous transactions to take place. People have been defending their own privacy for centuries with whispers, darkness, envelopes, closed doors, secret handshakes, and couriers. The technologies of the past did not allow for strong privacy, but electronic technologies do.

+ +

We the Cypherpunks are dedicated to building anonymous systems. We are defending our privacy with cryptography, with anonymous mail forwarding systems, with digital signatures, and with electronic money.

+ +

Cypherpunks write code. We know that someone has to write software to defend privacy, and since we can't get privacy unless we all do, we're going to write it. We publish our code so that our fellow Cypherpunks may practice and play with it. Our code is free for all to use, worldwide. We don't much care if you don't approve of the software we write. We know that software can't be destroyed and that a widely dispersed system can't be shut down.

+ +

Cypherpunks deplore regulations on cryptography, for encryption is fundamentally a private act. The act of encryption, in fact, removes information from the public realm. Even laws against cryptography reach only so far as a nation's border and the arm of its violence. Cryptography will ineluctably spread over the whole globe, and with it the anonymous transactions systems that it makes possible.

+ +

For privacy to be widespread it must be part of a social contract. People must come and together deploy these systems for the common good. Privacy only extends so far as the cooperation of one's fellows in society. We the Cypherpunks seek your questions and your concerns and hope we may engage you so that we do not deceive ourselves. We will not, however, be moved out of our course because some may disagree with our goals.

+ +

The Cypherpunks are actively engaged in making the networks safer for privacy. Let us proceed together apace.

+ +

Onward.

+ + + diff --git a/MultiObfuscator/html/doc/humans.html b/MultiObfuscator/html/doc/humans.html new file mode 100644 index 0000000..27376e3 --- /dev/null +++ b/MultiObfuscator/html/doc/humans.html @@ -0,0 +1,54 @@ + + + +Humans: The Weakest Link In Information Security + + + + + +
+

Humans: The Weakest Link In Information Security

+ +

+By Jeff Schmidt: Published: March 11, 2011
+Hosted at: EmbeddedSw.net - OpenPuff
+Hosted at: EmbeddedSw.net - MultiObfuscator +

+
+ +

All security is a weakest link problem. An impressive 3-ton steel and concrete bank vault door is useless if the back of the vault is made of drywall. A prisoner can look back at a 15-foot electrified barbed-wire fence as he walks through the unlocked gate. And just about every technical countermeasure that brilliant engineers devised to protect vital computer systems and valuable information can be accidentally or intentionally circumvented by human interaction.

+ +

The array of technical countermeasures available to protect information and computer systems has certainly expanded dramatically over the last decade. Most corporate IT departments now allocate a significant portion of their budgets to information security. What isn't clear is whether systems are more secure as a result.

+ +

The concept of 'security' itself is a nebulous one. Notoriously difficult to measure, one practical and business-oriented approach to defining security is measuring incidents and the resulting damages/losses. Based on the high-profile breaches of the past 18 months, the industry-wide overall level of 'security' doesn't seem to be improving; arguably it's getting worse. Awash in technical countermeasures, we have to ask: "what we're missing?" The answer is that the human remains the weakest link in the information security chain.

+ +

Usable security still eludes us

+ +

Thousands of years of human evolution have created the "hairs on the back of our necks" that alert us to possible danger. This mechanism protected early humans from predators and still protects us when walking an unfamiliar street at night. These mechanisms don't exist in the online world; well-trained and well-intentioned humans are all too often and easily tricked into doing something dangerous. Just ask the employee of security company RSA who innocently opened a benign-looking email attachment. The employee who opened that attachment unwittingly weakened millions of RSA authentication tokens - RSA SecurID tokens secure access to many high security systems including banks, utilities, and governments around the world. We're all familiar with the obscure "certificate warnings" that our Web browsers occasionally grace us with - these warnings are completely indecipherable, un-actionable, and thus routinely ignored.

+ +

The risks posed by trusted employees must be actively managed

+ +

Employers have to trust their workers; there is no reasonable alternative. However, all too often, employers fail to realize that risks posed by trusted personnel are highly dynamic and must be actively managed. Often, employers assess employee risk only once - at the time of hire. Unfortunately, employees with decades of tenure are capable of the unthinkable if they're having trouble making the mortgage payment next month. Moreover, as employees' roles' change, their access to sensitive information and level of supervision must be re-evaluated to actively manage the acceptable level of risk. Just last year, for example, not properly vetting an employee's security access allowed a low-level HSBC employee to steal data that affected 24,000 of the private bank's clients - 15 percent of its client-base.

+ +

Perspectives on information are changing

+ +

Generation X and Y grew-up in the Internet age - where an infinite volume of information is as close as the nearest browser. Open Source software, Wikipedia, Napster and Google have created an expectation that digital information is readily available and free. Of course, this has created tension with brands and copyright holders facing rampant piracy of commercial software and media. As the Information Age generations make up more and more of the workforce, their perspectives risk devaluing information as a proprietary resource. Problems arise when employees treat data casually, sharing widely, emailing socially, and taking valuable information with them when they leave.

+ +

Be mindful of the "easier way in"

+ +

When a security mechanism presents a standard "hard" way through and an alternative "easier" way through, the bad guys will always target the easy way. There is no better example of this fact than airport security screening: while many decry the screening of pilots, soldiers, children and the elderly, the reality is that relaxing requirements in any part of the system creates an "easy" way through that will be exploited. If pilots are expedited through airport security with less screening than the general population, the bad guys will dress-up as pilots.

+ +

In the cybersecurity world, automated ("self-service") password reset mechanisms are the norm and are a perfect example of this phenomenon. They're used because they are quick, economical and convenient for both the account issuer and the user. We've all used them - click the "I forgot my password" button and I'm either sent an email or prompted to answer a few personal questions. Unfortunately, the security of the alternate (reset) mechanism is often weaker than the password, and as such the reset mechanisms have become attractive targets. Just ask the numerous Hollywood starlets that have recently had their mobile accounts compromised via this mechanism. Social networking sites have made it easy for bad guys to guess the answers to common "personal security questions" such as the name of your street growing-up, high school mascot, etc.

+ +

In any system where humans play an integral role, vulnerabilities due to human nature will permeate. Any realistic security system creates redundancies and redoubts that address both technical and human vulnerabilities. The best security systems also mitigate the consequences of the admittedly inevitable beach.

+ + + diff --git a/MultiObfuscator/html/doc/legal_coercion.html b/MultiObfuscator/html/doc/legal_coercion.html new file mode 100644 index 0000000..e5a8014 --- /dev/null +++ b/MultiObfuscator/html/doc/legal_coercion.html @@ -0,0 +1,1983 @@ + + + +Self Incrimination and Cryptographic Keys + + + + + +

Self Incrimination and Cryptographic Keys

+ +

+By Greg S. Sergienko: Published: February 13, 1996
+Hosted at: EmbeddedSw.net - OpenPuff
+Hosted at: EmbeddedSw.net - MultiObfuscator +

+ +

Cite As: Greg S. Sergienko, +Self Incrimination and Cryptographic Keys, 2 RICH. +J.L. & TECH. 1 (1996).

+ +

+ +

I. Introduction

+ +

II. The Fifth Amendment and +the Compulsory Production of Cryptographic Keys

+ +
+

A. Accessibility of Documents + Under the Fourth and Fifth Amendments

+

B. Fifth Amendment Testimoniality + and the Production of a Memorized Cryptographic Key

+

C. The Scope of Immunity + from the Compelled Production of the Key

+
+

1. Derivative Use Immunity + for Documents Produced with a Cryptographic Key

+

2. Immunity as a Result + of the Special Properties of Cryptographic Keys

+
+

a. Creation of Communicative + Content Through Decryption

+

b. Authentication Through + Decryption

+
+

3. Conclusion

+
+
+ +

III. The Advantages of a Traditional +Solution

+ +
+

A. Search and Seizure Under + "Boyd v. United States"

+

B. Implications of the Rejection + of "Boyd"

+
+

1. Rejection of Precedents

+

2. Inconsistencies with + Other Authority on Privilege

+

3. Privacy and Property + Rights

+
+
+ +

IV. Conclusion

+ +

+ +

+ +

I. Introduction

+ +

{1} The Fifth Amendment commands that no +person "shall be compelled in any criminal case to be a witness +against himself."[1] +However, extending current judicial interpretations of the Fourth +and Fifth Amendments too far may allow the government easy access +even to private documents, making one's diary and other documents +accessible and admissible in court against their author.

+ +

{2} What the Court has taken away, technology +has given. Modern cryptography can make it virtually impossible +to decipher documents without the cryptographic key,[2] thus making the availability of the contents +of those documents depend on the availability of the key. This +article examines the Fourth and Fifth Amendments' protection against +the compulsory production of the key and the scope of the Fifth +Amendment immunity against compelled production. After analyzing +these questions using prevailing Fourth and Fifth Amendment jurisprudence, +I shall describe the advantages of a privacy-based approach in +practical and constitutional terms.

+ +

+ +

II. The Fifth Amendment and the Compulsory +Production of Cryptographic Keys

+ +

+ +

A. Accessibility of Documents +Under the Fourth and Fifth Amendments

+ +

{3} The Fourth Amendment provides little +protection from the search and seizure of documents. In Warden +v. Hayden,[3] the +Court discarded the rule that the power to search and seize depended +on the assertion of a superior right to the property seized. Before +Warden, officers could search for fruits of a crime, +because a superior right was in the property owners; for contraband, +because no one could legally own contraband; and for instrumentalities, +because their role in the commission of the crime made them forfeitable; +but could not search for mere evidence.[4] Because, for example, diaries are "mere +evidence," the Warden rule potentially could allow +search warrants to seize diaries and other purely private documents. +Although Warden expressly refused to consider "whether +there are items of evidential value whose very nature precludes +them from being the object of a reasonable search and seizure,"[5] many now believe that +all objects can be seized.[6]

+ +

{4} The Fifth Amendment's guarantee against +self incrimination also provides little protection for existing +documents. The Court generally interprets the Fifth Amendment +to allow the government to compel the production of these +documents, because the government did not compel anyone to write +the documents.[7] +Thus, the government can compel the production of documents and, +if written, the key encrypting the documents. Although there may +still be some protection for private documents, such protection +is uncertain in its existence and narrow in its scope.[8]

+ +

{5} Under the Warden view and Fifth +Amendment jurisprudence, written cryptographic keys cannot be +distinguished from the documents themselves. If the key is found +by a search, it can be used. If one can subpoena the underlying +documents, one can subpoena the key.

+ +

{6} In this section, I shall assume the +correctness of Justice O'Connor's belief that there is now no +Fourth or Fifth Amendment obstacle to the compulsory production +of existing documents, whether text, encrypted text, or cryptographic +key.[9] This means that +the basis of protection must be an assertion of Fifth Amendment +privilege against a question asking one to disclose a memorized +cryptographic key.

+ +

+ +

B. Fifth Amendment Testimoniality +and the Production of a Memorized Cryptographic Key

+ +

{7} Because current law may hold that the +underlying, pre-existing documents can be the subject of a search +or subpoena, Fifth Amendment analysis must focus on the disclosure +of the cryptographic key on the assumption that the key is not +written down. The Fifth Amendment is now interpreted to bar only +the production of "testimonial information,"[10] so the protection of the Fifth Amendment +extends only to an incriminating communication that might "itself, +explicitly or implicitly, relate a factual assertion or disclose +information."[11]

+ +

{8} A non-cryptographic key is physical +evidence, not testimonial evidence.[12] +Thus, the Court has upheld both a Fourth Amendment seizure[13] and the compulsory +production of such non-testimonial evidence, such as a blood sample[14] or the performance +of sobriety tests that do not involve communication.[15]

+ +

{9} 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,[17] +without incurring much risk of prosecution or of social obloquy +should the key leak or the Fifth Amendment argument be rejected. +However, many keys will not confess to a crime. So, while this +may be a factor for the prudent in selecting particular cryptographic +keys, it cannot be relied upon to resolve the problems before +the courts.[18]

+ +

{10} Because a cryptographic key need +not be testimonial and will ordinarily not be testimonial, it +might be argued that the disclosure of the key could be compelled +without raising Fifth Amendment issues. Why should a cryptographic +key be protected from production if a non-cryptographic key such +as the key to a safe, is not?[19]

+ +

{11} The difficulty in distinguishing +the two cases is exacerbated by the ability of circumstances to +cause the same information to be expressed in testimonial and +non-testimonial ways. For example, producing a key to a safe implicitly +asserts that the key I turn over is the key to the safe and implicitly +admits my control over the key. These implicit admissions cannot +be used against the producer of the key. However, the key itself +will not be suppressed. One could easily consider the production +of the key an implicit description of the shape of the key, perhaps +in a standardized form common to locksmiths, in which case I have +made a testimonial assertion about the key and the relation of +the key so described to the safe that the key opened.

+ +

{12} Despite the functional identity between +these keys, the Court has already suggested in dictum that there +is a fine line that distinguishes testimonial from non-testimonial +compulsion. In Doe v. United States (Doe II), the Court +recognized that "be[ing] compelled to reveal the combination +to his wall safe" would be testimonial compulsion, but suggested +that the key to a strongbox containing incriminating documents +would not be.[20]

+ +

{13} The Court's conclusion in Doe +II appears to be consistent with its other cases. The argument +that the Fifth Amendment allows the compulsory disclosure of a +combination confuses the requirement that the statement be testimonial +with the argument that the Fifth Amendment requires that the thing +about which the statement is made be testimonial. Although the +key has no testimonial content, a statement concerning the key +is testimonial. The same would be true of a murder weapon. The +murder weapon itself is not testimonial, but the suspect's statement +about the location of the murder weapon would be testimonial. +So, too, would the disclosure of the key associated with particular +encrypted documents be testimonial. Thus, if a custom-designed +chip included the key in hardware or firmware, the production +of the chip could be compelled, just as physical evidence or a +pre-existing document could be compelled.

+ +

{14} The difficulties with the boundary +line the Court has drawn between testimonial and non-testimonial +information are not unique to cryptographic keys. For example, +although evidence about someone's physical state is not considered +testimonial information, the use of heart rate and skin resistance +as part of a polygraph test might well be considered testimonial. +"[E]ven a subject unwilling throughout would presumably provide +revealing lie-detector responses if bombarded by words meaningful +in the context of the crime being investigated-'hammer!' 'club!' +'wrench!' 'pipe!'"[21] +The Supreme Court suggested in Schmerber that the results +of such a test would be inadmissible:

+ +
+

Some tests seemingly directed to obtain "physical evidence," + for example, lie detector tests measuring changes in body function + during interrogation, may actually be directed to eliciting responses + which are essentially testimonial. To compel a person to submit + to testing in which an effort will be made to determine his guilt + or innocence on the basis of physiological responses, whether + willed or not, is to evoke the spirit and history of the Fifth + Amendment. Such situations call to mind the principle that the + protection of the privilege "is as broad as the mischief + against which it seeks to guard."[22]

+
+ +

{15} Conversely, testimonial information +sought not for the truth of the information, but to reveal an +underlying physical state, is inadmissible under the Fifth Amendment. +Pennsylvania v. Muniz[23] +involved a videotape of someone who had been arrested for drunk +driving. At one point, the defendant's interrogator asked him +when his sixth birthday was.[24] +The questioner was not interested in the actual date of the birthday, +but in "the incriminating inference of impaired mental faculties +. . . from a testimonial aspect of that response."[25] Although the inquisitor was not interested +in obtaining a truthful answer, the Supreme Court held that the +question implicated the Fifth Amendment.[26]

+ +

{16} These boundary lines cannot easily +be extended to make disclosure of cryptographic keys non-testimonial. +Ambiguities could be used to extend the Fifth Amendment to the +production of implicitly testimonial conduct, such as the production +of safe keys. However, to hold that an expressly assertive statement +was non-testimonial would effectively eliminate the Fifth Amendment's +protection against self-incrimination. A cryptographic key can +be likened to testimonial statements. Consequently, it seems safe +to conclude that the compulsory production of a cryptographic +key implicates the Fifth Amendment.

+ +

+ +

C. The Scope of Immunity +from the Compelled Production of the Key

+ +

{17} If, as the above argument suggests, +the identification of the key is testimonial, the critical issue +will be the extent of the immunity necessary to satisfy the Fifth +Amendment's proscription of self-incrimination.[27] The federal government has suggested that +it will seek to grant immunity as a tool for discovering encrypted +documents.[28] Does +immunity extend only to the key or does it also cover the decrypted +document produced by applying the key to the encrypted text?

+ +

+ +

1. Derivative Use Immunity +for Documents Produced with a Cryptographic Key

+ +

{18} The Supreme Court has distinguished +between incriminating documents, which may not be protected by +the privilege, and the incriminating aspects of producing the +documents, from which one may claim Fifth Amendment immunity even +if the documents themselves are uncovered.[29] Thus, in United States v. Doe (Doe I), +the Court held that the production of individual tax records in +the individual's possession might have testimonial and self-incriminating +aspects such that their production could only be required through +a grant of use immunity.[30] +Although it has been suggested that derivative immunity for encrypted +documents would follow as a matter of course from the production +of the key,[31] this +line of cases suggests otherwise.

+ +

{19} The leading authority here is Justice +White's opinion for the Court in Fisher, which discusses +the testimonial aspects of production as though the courts could +compel production so long as the amount of self-incrimination +is not excessive.[32] +The same sort of reasoning appears in other cases, even when those +cases have resolved this analysis in favor of the individual. +For example, in Doe I, the Court upheld a refusal to comply +with a subpoena absent a grant of immunity because the incriminating +effects of production were not "trivial."[33] Doe I distinguished Fisher +as a case where "the act of production would have only minimal +testimonial value and would not operate to incriminate the taxpayer."[34]

+ +

{20} Fisher did not address the +issue of derivative use immunity where the government would not +have found the documents without a subpoena. This is because Fisher +involved a situation in which the government could certainly get +the documents without the aid of the subpoena. "The existence +and location of the papers are a foregone conclusion and the taxpayer +adds little or nothing to the sum total of the Government's information +by conceding that he in fact has the papers."[35] Because the government did not need the +subpoena to get the papers, it had sufficiently shown an independent +route to the papers to make them admissible without violation +of the Fifth Amendment.

+ +

{21} It is not certain that the Court +still follows this narrow view of Fisher. In Braswell +v. United States, a case following Fisher, the dissent +argued without opposition from the majority that documents produced +pursuant to a claim of privilege could nonetheless be used against +the producer, so long as the testimonial effect of the production +itself was shielded.[36]

+ +

{22} On the other hand, the Court has +not held that documents compulsorily produced can automatically +be used against the producer. Fisher does discuss the actual +effect of production; the facts of the case, in which the papers +were initially in the hands of the accountant, support the Court's +conclusion that the production of the papers did not increase +the government's information. Nothing in Fisher, then, +can be interpreted to mean that the Fifth Amendment allows the +derivative use of documents which the government could not independently +find and authenticate.[37] +Doe I, subsequent to Fisher, held that the documents +in question need not have been produced,[38] and in the absence of a request for use +immunity, the Court did not deal with the issue of derivative +use immunity.[39] Doe +II, also subsequent to Fisher, involved the compulsory +signing of a directive to foreign banks without admitting any +information.[40] Because +the Court held that this did not implicate the Fifth Amendment, +that case also did not involve any issue of derivative use immunity. +In Braswell the underlying documents were corporate records +and therefore not privileged,[41] +so derivative use immunity could not apply.

+ +

{23} If the broad reading of Fisher +is correct, the presumable basis for Fisher's apparent +conclusion is that the documents themselves do not implicate the +Fifth Amendment because they were not produced under compulsion. +This, of course, makes perfect sense with regard to the documents +considered as original objects of discovery under a search and +seizure permitted by the Fourth Amendment.

+ +

{24} However, it neglects the Court's +usual requirement that immunity extend to the derivative use of +any compelled information. The leading case, Kastigar v. United +States, establishes the general rule that the grant of immunity +must include "derivative use immunity": immunity from +"any use, direct or indirect, of the compelled testimony +and any information derived therefrom . . . ."[42] Kastigar "prohibits the prosecutorial +authorities from using the compelled testimony in any respect."[43] The burden is on the +prosecution, which has "the affirmative duty to prove that +the evidence it proposes to use is derived from a legitimate source +wholly independent of the compelled testimony."[44] Thus, use immunity expressly prohibits using +testimony "as an 'investigatory lead'" or using "any +evidence obtained by focusing investigation on a witness as a +result of his compelled disclosures."[45]

+ +

{25} In the absence of derivative use +immunity, the Fifth Amendment protection against self-incrimination +places an individual compelled to produce evidence in a better +position than receiving immunity. Kastigar relied on the +Court's prior decision on state-compelled testimony, holding that +"immunity from use and derivative use 'leaves the witness +and the Federal Government in substantially the same position +as if the witness had claimed his privilege' in the absence of +a grant of immunity."[46] +If the information would not have been discovered without the +grant of immunity, the witness is placed in a worse position because +of the grant of immunity.[47]

+ +

{26} In its cases involving the production +of documents, the Court seems to have confused the issue of whether +the documents are necessarily privileged with the question of +whether they are the product of compelled testimonial conduct. +The Court was arguably correct in its conclusion that they are +not privileged because their writing was not compelled. Thus, +one can conclude that if the documents had been seized as a result +of a legitimate search, they would be admissible. However, the +Court ignored the question of whether they were the product of +compelled information. If the prosecution immunizes a defendant +and asks her where the murder weapon is, and the prosecution uses +that information to obtain the weapon, it will be barred from +using the weapon to trace the defendant to the crime unless it +can show an independent path. Indeed, the Court has recently re-affirmed +its statement in Curcio v. United States[48] that the custodian of documents cannot be +compelled to answer questions about the documents' location without +a grant of use immunity.[49] +Under the Court's precedents, such a grant implies that documents +discovered or produced as a result of the answers to such questions +would be suppressed as the product of the compelled testimony.[50] A subpoena to produce +the documents implicitly requires the same information as would +result from the answering of questions about the documents' location, +so a distinction in the scope of derivative immunity in the two +cases seems unjustified. Indeed, the Court's earlier cases expressly +equate documents discovered by compulsory production and documents +discovered by compulsory testimony, which then leads to the documents:

+ +
+

In practice the result is the same to one accused of a crime, + whether he be obliged to supply evidence against himself or whether + such evidence be obtained by an illegal search of his premises + and seizure of his private papers. In either case he is the unwilling + source of the evidence, and the Fifth Amendment forbids that + he shall be compelled to be a witness against himself in a criminal + case.[51]

+
+ +

{27} In Fisher and progeny, the +defendant failed sufficiently to exclude the possibility of independent +discovery. So far as holdings go, as opposed to statements, there +is nothing in the Supreme Court's decisions from Fisher +to the present that excludes the possibility of its rejecting +its ill-conceived and inconsistent assumptions on derivative use +immunity in the case of documents. Even the statements are rare, +being confined to a dissenter's assertion in Braswell.[52]

+ +

{28} Thus, it is still open for the Court +to conclude that its conventional doctrines of use immunity apply +to documentary production. In the context of cryptographic keys, +that would ensure that the compulsory production of the key provided +derivative use immunity for the contents of the documents decrypted +with the key.

+ +

+ +

2. Immunity As a Result +of the Special Properties of Cryptographic Keys

+ +

{29} Even if the Court concludes that +derivative use immunity does not generally apply to documents +discovered with the aid of compelled testimony, there are special +reasons for extending Fifth Amendment immunity to documents decrypted +with the aid of the compelled production of a cryptographic key.

+ +

+ +

a. Creation of Communicative +Content Through Decryption

+ +

{30} One unique property of a cryptographic +key is that it creates communicative content. Producing an ordinary +document or making available a key to a safe does not alter the +communicative content of the documents produced or made available. +In contrast, producing a cryptographic key gives the document +a testimonial content by decrypting the document and returning +it into plaintext. Thus, the compulsory production of the key +is the compulsory creation of testimonial content. Without the +key, the documents would not be useful as testimony.[53]

+ +

{31} Several Supreme Court opinions suggest +that the creation of documentary evidence in this fashion triggers +Fifth Amendment protection. The Court has held that the protection +of the Fifth Amendment extends to any incriminating communication +that might "itself, explicitly or implicitly, relate a factual +assertion or disclose information."[54] The production of a cryptographic key indirectly +relates the material contained in the document decrypted with +the cryptographic key and should therefore lead to immunity under +the Fifth Amendment for the document produced with the key.

+ +

{32} Elsewhere, the Court has stated that +it "do[es] not view the exhibition of physical characteristics +to be equivalent to the creation of documentary evidence."[55] The Court's concern +with "the creation of documentary evidence" also suggests +that the compulsory production of the cryptographic key, which +makes possible the creation of the documentary evidence to be +used in court, provides immunity as to the documents that could +be created only with the key.

+ +

{33}Finally, Fisher and Doe +I stated that the production sought in those cases "does +not . . . ordinarily compel the taxpayer to restate, repeat, or +affirm the truth of the contents of the documents sought."[56] Thus, although a person +may be compelled to produce a document, compulsory production +cannot require her to repeat, affirm, or explain the contents +of the document. However, the compulsory production of the key +does force the repetition of the document in a new and courtroom-usable +form. Under these precedents, then, the compulsory production +of a key should give rise to immunity from culpability derived +from the document produced with the key.

+ +

{34} Even if it were argued that it is +the document and the key that jointly create the testimonial content, +that is sufficient, because self-incrimination protection extends +to all the "links [that] frequently compose that chain of +testimony which is necessary to convict any individual of a crime."[57] Thus, an ordinarily +non-privileged item, such as the identity of the client or fee +information, is privileged if the disclosure of the item would +reveal the substance of an attorney-client communication.[58] Because the key is a necessary link in the +chain, it gives rise to immunity from documents with it.

+ +

+ +

b. Authentication Through +Decryption

+ +

{35} A second unique property of a cryptographic +key is that it can operate as a digital signature, necessarily +authenticating a document.[59] +Indeed, if the person providing the information has never shared +that information with anyone else, a cryptographic key provides +a more effective way of authenticating than locks, because it +is easier to pick locks than to decrypt without a key.[60]

+ +

{36} The Fifth Amendment precludes the +compulsory authentication of documents. "[T]he Fifth Amendment +may protect an individual from complying with a subpoena for the +production of his personal records in his possession because the +very act of production may constitute a compulsory authentication +of incriminating information."[61] +"'[T]he constitutional privilege against self incrimination +. . . is designed to prevent the use of legal process to force +from the lips of the accused individual the evidence necessary +to convict him or to force him to produce and authenticate any +personal documents or effects that might incriminate him.'"[62]

+ +

{37} The Court noted that where the compulsory +production of documents may authenticate them, "reliev[ing] +the government of the need for authentication," the Fifth +Amendment precludes their production.[63] Although Fisher suggested that no +grant of immunity is necessary where the "possession [of +the documents, their] existence, and authentication were a 'foregone +conclusion,'"[64] +these issues will seldom be indisputable with respect to cryptographic +keys. One difference between "a pre-existing document and +a pre-existing object" is that a prosecutor "can usually +authenticate [a document, such as a diary,] as the defendant's +either by content or handwriting analysis."[65] Authentication in this way will be impossible +without the key. The impossibility of such authentication suggests +that the factual premise of Fisher cannot apply in the +case of computer-encrypted documents, so that compulsory production +of a cryptographic key requires granting use immunity for the +documents decrypted with the key.

+ +

+ +

3. Conclusion

+ +

{38} Close analysis of cases interpreting +the Fifth Amendment suggests that the amendment does provide protection +against the compulsory production of cryptographic keys. This +protection can result from a reconciliation of the Court's inconsistency +between the compulsory production of documentary evidence and +its more general treatment of the doctrine of derivative use immunity. +Even in the absence of such a reconciliation, the Court's precedents +suggest that it can be expected to hold that the documents produced +from a cryptographic key cannot be used against the producer of +the key, because a cryptographic key authenticates and confers +testimonial content on documents that are otherwise unauthenticated +and meaningless.

+ +

{39} This result is quite narrow: only +those who claim to be criminally incriminated by the key or the +decrypted document can claim the protection of the Fifth Amendment. +Although I have suggested a way in which overbroad criminal statutes +can be turned to the advantage of innocent citizens,[66] this result seems unsatisfactory. Why should +criminals have a right to privacy in their documents when non-criminals +do not? The obvious answer is that the Fifth Amendment protects +against self-incrimination, not against invasions of privacy. +However, early American cases provided much broader protection +for privacy. The next section justifies a revival of these early +authorities.

+ +

+ +

III. The Advantages +of a Traditional Solution

+ +

{40} Although early cases provided immunity +from search and seizure and the compulsory production of most +private documents, it is unclear whether any of this early protection +for private documents survives. Justice O'Connor's concurrence +in the Doe II opinion expressed her belief that the Court's opinion +eliminated the possibility of protection for documents. It has +been suggested that her opinion for the court in Baltimore +City Department of Social Services v. Bouknight[67] establishes her Doe II concurrence +as the holding of the Court.[68]

+ +

{41} On the other hand, Bouknight involved +an attempt to conceal a child, which is quite a different case +from documents.[69] +The absence of protection for corporate documents results from +the state's power of visitation over corporations, which meant +that their records were not private.[70] The same argument would apply with even +greater force with a child, which could not be said to be the +private property or records of a parent. Moreover, even after +the Court's decision in Baltimore v. Bouknight, the Court +continues to say that the privilege reflects "our respect +for the inviolability of the human personality and of the right +of each individual 'to a private enclave where he may live a private +life.'"[71] This +idea of a private life is difficult to reconcile with a privilege +that applies solely to self-incriminating and testimonial conduct +before a judicial tribunal.

+ +

{42} This part of the paper suggests the +outlines of an alternative approach to the problem of confidential +documents and justifies that approach in terms of the Constitution +and its traditional interpretation. Even if the United States +Supreme Court refuses to entertain such an approach, state courts +may be persuaded that such an approach is both more consistent +with the intent of the adopters of the Constitution and contemporary +considerations of policy.

+ +

+ +

A. Search and Seizure under +"Boyd v. United States"

+ +

{43} In Boyd v. United States,[72] the Supreme Court +held that "a search and seizure [was] equivalent [to] a compulsory +production of a man's private papers" and that the search +was "an 'unreasonable search and seizure' within the meaning +of the Fourth Amendment."[73] +Under Boyd, the government could not search for private +documents and could not compel their production.

+ +

{44} The Boyd decision was based +on a careful review of the intent at the time of the framing and +the practices of the colonial governments to which the framers +objected.[74] Historically, +searches could only be based on the superior property rights of +the government or some other person in the things for which the +search was made.[75] +Thus, one could search for and seize "stolen or forfeited +goods"[76] and +contraband, such as "counterfeit coin, lottery, tickets, +implements of gambling, & c."[77] "Forfeited goods" included the +instrumentalities of the crime, which were forfeited because of +their use in the crime[78] +and included papers that were fruits, contraband, or instrumentalities.[79] Because mere evidence +could not be searched for at the time of the framing, and the +framers intended to adopt these common-law restrictions,[80] these standards defined what the framers +would have understood as a "reasonable" search under +the Fourth Amendment.[81]

+ +

{45} Boyd likewise cited the work +of the first congress and contemporary rules of equity in interpreting +the scope of the Fifth Amendment's right against self-incrimination.[82] The Boyd opinion +noted that even the "obnoxious writs of assistance" +did not allow searches for private papers.[83] As the Boyd Court further observed, +the same history showed an absence of power to use process to +seize private papers,[84] +and the first Congress expressly adopted chancery practice, which +forbade the compulsory production of documents.[85] Congress did not enact a statute that could +possibly be construed to allow the seizure of private papers, +whether for use in evidence or in forfeiture, until 1863.[86] The Boyd Court concluded from this +review of practices of the framing that the compulsory production +of private papers or a search for them violated the Fifth Amendment +as well as the Fourth Amendment.[87]

+ +

{46} Boyd's antiquity suggests +that it is consistent with the framers' intent. Indeed, both Boyd +and the subsequent Gouled decision expressly placed their +analysis of the Fourth and Fifth Amendments on a historical basis.[88] Subsequent decisions, +although criticizing these cases, have not attacked their historical +basis.[89]

+ +

{47} One possible difficulty with Boyd's +argument is that the search and review of papers are themselves +the invasion of privacy. That papers that are mere evidence are +not then carried away does not eliminate the harm from the search. +As Learned Hand wrote, "If the search is permitted at all, +perhaps it does not make so much difference what is taken away, +since the officers will ordinarily not be interested in what does +not incriminate, and there can be no sound policy in protecting +what does."[90] +However, as Hand continued, "Nevertheless, limitations upon +the fruit to be gathered tend to limit the quest itself."[91] In addition, the need +for probable cause for a search, coupled with restrictions on +what the government may seize, could limit the occurrences of +searches of private papers.

+ +

{48} Although Boyd's property-oriented +approach to the Fourth and Fifth Amendments provides more support +for privacy than the contemporary privacy-based approach of Katz,[92] it would be wrong +to conclude that the Boyd rule would allow unrestricted +criminality. Under the Boyd line of cases, there could +be no Fifth Amendment rights for corporate papers because of the +state's visitatorial powers.[93] +Under the post-Boyd extension of corporate treatment to +non-corporate collective entities, organizations such as partnerships, +unions, and bankrupt businesses would have no Fifth Amendment +protection.[94] If this +doctrine covers associations in fact,[95] the scope of communications entitled to +Fifth Amendment protection would present few obstacles to law +enforcement.

+ +

{49} Similarly, Boyd's principles +allowed the Fourth Amendment seizure of papers sent to another +in pursuit of criminality as the instrumentalities of criminal +acts.[96] As Justice +Marshall observed in dissent, "I see no bar in the Fourth +or Fifth Amendment to the seizure of a letter from one conspirator +to another directing the recipient to take steps that further +the conspiracy.[97]

+ +

{50} Boyd's definition of Fourth +and Fifth Amendment rights would also allow the granting of use +immunity to the recipient of a communication to compel the contents +of that communication to be used against the sender, or vice versa. +An individual may not invoke the Fifth Amendment to protect against +incrimination by a third party.[98] +Thus, under the Fifth Amendment, encrypted material that one sends +to another can be discovered by the government by giving the recipient +use immunity for the production of the key, because the Constitution +"does not proscribe incriminating statements elicited from +another."[99]

+ +

+ +

B. Implications of the Rejection +of "Boyd"

+ +

+ +

1. Rejection of Precedents

+ +

{51} If the Court continues to reject +Boyd, it will have to reject more than the Boyd +case. The doctrine that there was substantive protection of documents +under the Fourth Amendment and Fifth Amendment, and that an invalid +search or seizure under the Fourth Amendment precluded the use +of the documents was shared in many opinions, some unanimous and +some by the Court's most eminent members. In United States +v. Saline Bank, Chief Justice Marshall, speaking for the Court, +rejected a request for the production of bank documents.[100] "The rule clearly is, that a party +is not bound to make any discovery which would expose him to penalties, +and this case falls within it."[101] Hale v. Henkel affirmed Boyd's +holding that "an order for the production of books and papers +may constitute an unreasonable search and seizure within the Fourth +Amendment."[102] +In Gouled v. United States,[103] +Justice Clarke, speaking for a unanimous court, held when a government +agent seized documents in violation of the Fourth Amendment, their +introduction into court violated the Fifth Amendent.[104] The Court's Silverthorne Lumber opinion +by Justice Holmes and Justice Brandeis' famous Olmstead +dissent are in accord.[105] +Many other cases concur.[106]

+ +

{52} Boyd's statement has been +approved as recently as 1973, when United States v. Dionisio[107] stated that +the grand jury "cannot require the production by a person +of private books and records that would incriminate him."[108] In 1976, even after +the Fisher decision, the Court wrote in Andresen v. +Maryland, "'[T]he constitutional privilege against self +incrimination . . . is designed to prevent the use of legal process +to force from the lips of the accused individual the evidence +necessary to convict him or to force him to produce and authenticate +any personal documents or effects that might incriminate him.'"[109] Andresen, +by stating that the government's ability to use information depends +on whether it had been produced by subpoena or search, suggests +that the government was unable to use subpoenaed documents against +their producer.[110] +This result would not have followed from a legitimate search under +the Fourth Amendment.[111]

+ +

{53} The erosion of constitutional protection +for private documents proceeded in three ways. First, Warden +v. Hayden abolished the "mere evidence" rule.[112] Although Warden,[113] Fisher,[114] and other cases +have held out the possibility of protection for diaries, the general +rule is that merely evidentiary documents can now be seized without +restriction.[115]

+ +

{54} Second, cases have narrowed the scope +of evidence that was considered compelled, so that the compelled +production of documents was not considered the compulsion of the +incriminating evidence in the documents themselves. In Johnson +v. United States, Justice Holmes wrote for the Court, "A +party is privileged from producing the evidence, but not from +its production."[116] +That phrase led to the idea, in subsequent cases, that compelled +production of incriminating information could make the information +usable against the person producing it, if that person were screened +from the testimonial aspects of production.[117] This interpretation is inapplicable to +the facts of Johnson, which did not involve an attempt +to make a party produce evidence by granting that party limited +immunity.[118]

+ +

{55} Third, the Court further limited +the Fifth Amendment's protection to extend only to testimonial +evidence. The origin of this line of authority was cases such +as Holmes' opinion in Holt v. United States, which held +that an accused could be compelled to wear a blouse like that +worn by the perpetrator.[119] +Holt, however, did not distinguish between the act of producing +information and the testimonial contents of what was compulsorily +produced. Rather, it held that the Fifth Amendment's prohibition +only extended to "physical or moral compulsion to extort +communications from him, not an exclusion of his body as +evidence when it may be material."[120] Wearing the blouse was a physical act +and not a commnuication. However, the threat of contempt certainly +coerces documentary evidence, which is a communication. Thus, +Holt is entirely consistent with Holmes' opinion for the +Court in Silverthorne Lumber, which barred a subpoena for +documents.[121] Holt +is also entirely consistent with opinions that Holmes joined +such as Hale, affirming Boyd's holding that "an +order for the production of books and papers may constitute an +unreasonable search and seizure within the Fourth Amendment,"[122] and Gouled, +holding that when a government agent seized documents in violation +of the Fourth Amendment, their introduction into court violated +the Fifth Amendment.[123]

+ +

{56} However, in Fisher v. United States, +the Court stated that the compulsory production of business documents +did not compel testimonial self-incrimination, so it was not prohibited +by the Fifth Amendment.[124] +The Court reasoned that the author of the statements written in +the documents was not compelled to be a witness against himself, +because the author had voluntarily written the statements. The +Court did hold that any inferences drawn from the act of production +itself could be barred.[125] +"The elements of compulsion are clearly present, but the +more difficult issues are whether the tacit averments of the taxpayer +are both 'testimonial' and 'incriminating' for purposes of applying +the Fifth Amendment. These questions perhaps do not lend themselves +to categorical answers; their resolution may instead depend on +the facts and circumstances of particular cases or classes thereof."[126] In that case, the +Court concluded that because the papers had been prepared by the +accountant and were in the hands of the accountant, their production +did not "involve testimonial self-incrimination."[127]

+ +

+ +

2. Inconsistencies with +Other Authority on Privilege

+ +

{57} The expansion of other privileges +protecting against intrusion into personal thoughts, including +work-product immunity, attorney-client and spousal privileges, +and self-evaluative privileges, shows that there is no compelling +policy reason for rejecting Boyd.

+ +

{58) Work-product immunity had its origin +as a special case of mental privacy, not as a special privilege +for attorneys. As the Court wrote in Hickman v. Taylor, +which invented work-product protection, "[e]xamination into +a person's files and records, including those resulting +from the professional activities of an attorney, must be judged +with care. It is not without reason that various safeguards +have been established to preclude unwarranted excursions into +the privacy of a man's work."[128] If the doctrine of mental privacy is to +be rejected, then the foundation of Hickman and work-product +protection is undermined.

+ +

{59} Commonly accepted testimonial privileges +create at least as much social harm as and have fewer benefits +than Boyd's protection for private documents.[129] If I write down my daily activities in +a letter to an attorney or spouse, keeping a copy for myself, +the material is privileged in the hands of the author, the attorney, +and the spouse.[130] +Both the marital privilege and the Boyd privilege for private +documents create a zone of autonomy. "From the perspective +of the individual in Western industrial societies, the marital +relationship is likely to be seen as an extension of one's personal +autonomy . . . . It is in this sense that courts often glimpse +the relationship between the privilege against self-incrimination +and the marital witness privilege."[131]

+ +

{60} A diary privilege is even more justified +than an attorney-client privilege. Because of the need for legal +advice, the attorney-client relationship is less likely to be +deterred by a loss of privilege than diary keeping. Moreover, +the attorney-client privilege can be used to evade the law[132] or to convey information +through a corporation without creating a discoverable paper trail,[133] which weakens the +claim for the privilege.

+ +

{61} Courts and legislatures have also +been creating new privileges. The courts have judicially expanded +government privileges, even though the legislature can protect +the government. "[G]overnment privileges continue to metastasize."[134] Many jurisdictions +have also protected corporate efforts at self-evaluation under +the rubric of "self-evaluative privileges." These include +general self-evaluative privileges for hospital peer review committees[135] and environmental +audits,[136] and other +authorities have suggested expanding the privilege in other areas.[137]

+ +

{62} Thus, contemporary law generally +provides a high degree of privilege for attorneys and those who +consult with them, a fair degree of privilege for governments +and corporations evaluating themselves, and no privilege at all +for those who merely want to write down their ideas. Because the +equivalent of the Boyd privilege is available to those +who have spouses or attorneys and the sophistication to use them +in this way, only the shy, the naive, or the single and impoverished +need give up their right of privacy.

+ +

+ +

3. Privacy and Property +Rights

+ +

{63} In addition to Boyd's consistency +with the framers' intent and with other privileges created by +a privacy-based approach, its protection of property interests +may protect privacy more effectively than tests directly based +on privacy.

+ +

{64} Warden v. Hayden,[138] in which the Supreme Court discerned a +"shift in emphasis from property to privacy"[139] in Fourth Amendment rights, significantly +eroded protection against governmental searches and seizures. +In Warden v. Hayden, the Court upheld the seizure of mere +evidence, although such a seizure would not have been allowed +under property-based interpretations of the Fourth Amendment. +In Katz v. United States,[140] +the Supreme Court followed the Warden v. Hayden decision +and so resolved the "search" of a telephone conversation +by saying that the search invaded privacy, rather than reaching +the same result through property law concepts.[141]

+ +

{65} This reconstruction of Fourth Amendment +law to limit the influence of property law concepts was unnecessary. +Justices concurring in the result in Warden v. Hayden said +so in their opinions.[142] +Moreover, Warden v. Hayden based the shift to privacy on +the argument that common law concepts of property could not explain +prior decisions like Silverthorne Lumber, which had returned +copies of documents illegally seized.[143] However, even before Warden, the +Supreme Court protected against the unauthorized copying of material, +similar to that involved in the Silverthorne Lumber.[144] Since Warden, +the expansion of protection of non-physical property has continued.[145] In Katz, +the Court protected against electronic eavesdropping; it could +have held that a user's payment for a phone call gives him a property +interest in the call.[146]

+ +

{66} In addition to being unnecessary, +the shift in emphasis in Fourth Amendment analysis from property +law to privacy undermined the privacy interests that Justice Brennan, +the author of Warden v. Hayden, seemed to wish to promote. +The undermining arose from the difficulty in defining limits on +privacy. No one wanted to protect every expectation of +privacy-as the Court pointed out, this would provide constitutional +protection for the burglar justifiably thinking that his presence +in a house would go undiscovered.[147]

+ +

{67} To delimit the Fourth Amendment's +protection of privacy, the Court in Rakas v. Illinois began +to confine rights of privacy to those whose expectations of privacy +society considered "reasonable." Under Rakas and +more recent cases following it, "[a] subjective expectation +of privacy is legitimate if it is 'one that society is prepared +to recognize as "reasonable.'"[148]

+ +

{68} However, this made the privacy test +circular. How are we to determine that the expectation is "one +that society is prepared to recognize as 'reasonable'"?[149] As the Rakas +Court recognized, "[I]t would, of course, be tautological +to fall back on the notion that those expectations of privacy +which are legitimate depend primarily on cases deciding exclusionary-rule +issues in criminal cases."[150] +To avoid this problem, the Court concluded, "Legitimation +of expectations of privacy by law must have a source outside of +the Fourth Amendment, either by reference to concepts of real +or personal property law or to understandings that are recognized +and permitted by society."[151]

+ +

{69} Despite this recognition in the Rakas +opinion of the need to avoid tautology, the Court has generally +ignored or rejected non-criminal-law sources of an expectation +of privacy. The language from the opinion has been used only in +United States v. Jacobsen, and even in that case, the Court +upheld the search.[152] +In Jacobsen, the Court wrote that "the governmental +conduct could reveal nothing about noncontraband items," +so that the search was justified.[153] +By basing the permissibility of the search on its criminal law +consequences, the Court made it more likely that privacy rights +would arise only in criminal cases. The Court's restriction of +civil claims based on improper searches also reduces the likelihood +that a privacy claim would be heard in a non-criminal context.[154]

+ +

{70} More recently, the Court has rejected +the idea that "concepts of privacy under the laws of each +State are to determine the reach of the Fourth Amendment."[155] Thus, even state +law recognition of a right to privacy will not make those expectations +of privacy reasonable for purposes of the Fourth Amendment.[156] The Supreme Court +and state courts frequently differ on what constitutes a reasonable +expectation of privacy.[157]

+ +

{71} By defining rights of privacy almost +exclusively with reference to criminal cases, the Supreme Court +has insured that privacy will almost always be pitted against +the interest in convicting a criminal. Tying criminal rights to +property rights created a general interest in protecting criminals +because of the general interest in protecting property rights. +Tying criminal rights to property rights also allowed for the +expansion of rights against the government as new forms of property +arose. Tying criminal rights to a circular test based on "reasonable +expectations" that would only be applied in criminal cases +served neither of these purposes. Instead, this circularity allowed +the Fourth Amendment to be adjusted to the advantage of those +in the legal system best able to protect themselves. The very +uncertainty of the meaning of the word "privacy" promoted +this process.[158] +As a result, in several instances a common law expectation of +privacy exists because a business interest is involved, but the +corresponding interest in privacy under the Fourth Amendment is +held to be unreasonable.[159]

+ +

+ +

IV. Conclusion

+ +

{72} Cryptography may provide a technical +fix for Supreme Court decisions allowing the invasion of one's +private papers. However, the effectiveness of that fix will depend +on whether the Court holds that use immunity from the compulsory +production of a cryptographic key extends to the incriminating +documents decrypted with the key. Logic suggests that the Court +should so hold.

+ +

{73} However, the Court's inconsistencies +in this area suggest the limits of logic. The Court has consistently +reconstructed Fourth and Fifth Amendment precedents to move away +from historical practice. This reconstruction is in part responsible +for the Court's inconsistencies.

+ +

{74} A more sound approach would be to +adhere to the usual practice of viewing the Fourth and Fifth Amendments +as adopting the practices of the framers at the time of the framing. +This would revive broad protection for merely evidentiary materials. +Moreover, it would allow constitutional protections to evolve +along with social needs, as reflected in society's changing definition +of property.

+ +

+ +

Footnotes

+ +

[*]Greg S. Sergienko, +1980. A.B. Harvard College magna cum laude; degree in Social Studies; +
+1980-1982. Programmer/analyst in computational geometry, computer +graphics, and systems programming for Abt Computer Graphics Corp. +and Geographic Systems Inc.;
+1985. J.D. Harvard Law School magna cum laude;
+1985-1986. Law Clerk for the Honorable Alfred T. Goodwin, United +States Court of Appeals for the Ninth Circuit;
+1986-1993. Associate, Cable Barrett Langenbach & McInerney +and Barrett Hale & Gilman;
+1993-1994. Bigelow Fellow and Lecturer in Law, University of Chicago +Law School;
+1994-1996. Visiting Assistant Professor, University of Richmond +Law School;
+Spring 1995. Adjunct Professor, William & Mary Law School.

+ +

[1] U.S. CONST. +amend. V. The Fifth Amendment's privilege against self incrimination +was applied to the states through the Fourteenth Amendment in +Malloy v. Hogan, 378 U.S. 1 (1964). This protection means that +no government within the federal system can compel testimony that +would incriminate the witness in proceedings brought before any +other government's courts. Murphy v. Waterfront Comm'n, 378 U.S. +52, 77-78 (1964).

+ +

[2] Programs using +encryption keys can now make information highly resistant to decrypting +even if the algorithm for encrypting the information is known. +A. Michael Froomkin, The Metaphor is the Key: Cryptography, +the Clipper Chip, and the Constitution, 143 U. PA. +L. REV. 709, +886 +& nn. 767, +768 +(1995). For purposes of this paper, the term "cryptographic +key" will refer to that without which the government may +not gain access to the underlying plaintext. In a public key cryptosystem, +this would be the user's private key (and corresponding passphrase); +in a private key cryptosystem, this would be the private key. +It is conceivable that in other cryptosystems, the "key" +could very well be a word or even a phrase.

+ +

[3] 387 U.S. 294, 304 +(1967).

+ +

[4] Id.at 303.

+ +

[5] Id.; Fisher +v. United States, 425 U.S. 391, 407 n.9 (1976).

+ +

[6] Compare +In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, +1 F.3d 87 (2d Cir. 1993), cert. denied, 114 S. Ct. 920 +(1994) (holding that there is no protection for private papers) +with In re Grand Jury Dubpoena Duces Tecum Dated Oct. 29, +1992, 1 F.3d at 95-96 (concluding that such protection still exists) +(Altimari, J., dissenting). Justice O'Connor has declared in a +concurring opinion that "the Fifth Amendment provides absolutely +no protection for the contents of private papers of any kind." +United States v. Doe, 465 U.S. 605, 618 (1984) (Doe I) (O'Connor, +J., concurring). Justices Brennan and Marshall expressly disagreed. +Id. at 619 (Marshall, J., joined by Brennan, J., concurring +in part and dissenting in part). Moreover, a post-Doe decision +stated that the Fifth Amendment privilege reflects "our respect +for the inviolability of the human personality and of the right +of each individual 'to a . . . private life.'" Pennsylvania +v. Muniz, 496 U.S. 582, 595 n.8 (1990) (quoting Doe v. United +States, 487 U.S. 201, 212-13 (1988) (Doe II) (quoting Murphy v. +Waterfront Comm'n, 378 U.S. 52, 55 (1964) (internal citations +omitted))). This statement is difficult to reconcile with interpretations +of the Fifth Amendment providing no protection for existing documents.

+ +

[7] Fisher, 425 +U.S. at 409-10.

+ +

[8] Id. at 401 +n.7.

+ +

[9] The original message +is called the "plaintext." A key is used by a cipher +to transmute the plaintext into a ciphertext. Froomkin, supra +note 2, at 713-14.

+ +

[10] E.g., +Doe v. United States, 487 U.S. 201 (1988) (Doe II) (stating that +a directive to disclose bank records was not testimonial).

+ +

[11] Id. at +210.

+ +

[12] Id. at +210 n.9 (contrasting "be[ing] forced to surrender a key to +a strongbox containing incriminating documents" with "be[ing] +compelled to reveal the combination to [petitioner's] wall safe"). +Supreme Court Justices have expressed even further doubt as to +the meaning of "testimonial." California v. Byers, 402 +U.S. 424, 462 (1971) (Black, J., dissenting).

+ +

[13] Warden v. Hayden, +387 U.S. 294, 302-03 (1967) ("The items of clothing involved +in this case are not 'testimonial' . . . in nature, and their +introduction therefore did not compel respondent to become a witness +against himself in violation of the Fifth Amendment.") (citing +Schmerber v. California, 384 U.S. 757, 761 (1966)).

+ +

[14] Schmerber v. +California, 384 U.S. 757 (1966).

+ +

[15] Pennsylvania +v. Muniz, 496 U.S. 582 (1990).

+ +

[16] See, e.g., +MASS. GEN. L. ch. +272, §§ 18 (fornication), 21 (distributing contraceptives) +(1992 & Supp. 1995); MASS. GEN. +L. ch. 277 § 39 (1992 & Supp. 1995) (defining fornication +as "[s]exual intercourse between an unmarried male and an +unmarried female"); 18 +U.S.C. §§ 707, +711, +711a +(1994) (prohibiting the misuse of the 4-H symbols and characters +Smokey Bear and Woodsy Owl, respectively).

+ +

[17] See Gunn +v. Hess, 367 S.E.2d 399 (N.C. 1988) (sustaining Fifth Amendment +privilege for fear of prosecution for adultery and fornication); +Hollowell v. Hollowell, 369 S.E.2d 451 (Va. App. 1988); In +re Grant, 264 N.W.2d 586 (Wis. 1978); Choi v. State, 560 A.2d +1108 (Md. 1989) (prosecution's statement that it would not prosecute +did not remove privilege).

+ +

[18] The possibility +of a testimonial key suggests one respect in which use immunity +may be broader than transactional immunity. Transactional immunity +extends "absolute immunity against future prosecution for +the offense to which the question relates." Counselman v. +Hitchcock, 142 U.S. 547, 586 (1892). Use immunity, by contrast, +requires the prosecution to show that "the evidence it proposes +to use is derived from a legitimate source wholly independent +of the compelled testimony." Kastigar v. United States, 406 +U.S. 441, 460 (1972). "Immunity from the use of compelled +testimony, as well as evidence derived directly and indirectly +therefrom, affords this protection." Id. at 453.
+Thus, transactional immunity for the compulsory production of +the cryptographic key would extend protection only to the offense +mentioned in the testimonial key, not to the wholly unrelated +transaction mentioned in the document. In the example in the text, +that might be fornication in Massachusetts or using Woodsy Owl +to advertise one's 4-H group. Because the plaintext of the document +is derived from the key, the protection under use immunity must +extend to the wholly unrelated crime mentioned in the document--say, +a bank robbery. Whether the Supreme Court in a future case that +raises this issue remains true to its verbal formulations is beyond +the scope of this paper.

+ +

[19] One difference +that may be significant as an evidentiary matter, but which will +not alter duties to produce the key, is that a cryptographic key +that encrypts documents may not be able to decrypt them. Froomkin, +supra note 2, at 890-94 +(describing public-key encryption). By contrast, a safe-deposit +box key that locks the box must be capable of opening the box. +Public-key encryption means that one cannot assume that the possessor +or even the encrypter of encrypted files can decrypt them. Thus, +even if the government finds encrypted files in a person's possession, +a dishonest possessor may be credibly able to deny the ability +to decrypt the documents.

+ +

[20] Doe v. United +States, 487 U.S. 201, 210 n.9 (1988) (Doe II). The Court had earlier +suggested that the privilege could exist with respect to a combination +to a safe. Couch v. United States, 409 U.S. 322, 333 & n.16 +(1973) (citing United States v. Guterma, 272 F.2d 344 (2d Cir. +1959)).

+ +

[21] 8 JOHN +H. WIGMORE, EVIDENCE +§ 2265, at 400 ( John T. McNaughton rev., 1961). See also +MICHAEL J. SAKS +&REID HASTIE, +SOCIAL PSYCHOLOGY +IN COURT (1978).

+ +

[22] Schmerber v. +California, 384 U.S. 757, 764 (1966) (quoting Counselman v. Hitchcock, +142 U.S. 547, 562 (1892)). See also United States v. Cloyd, +25 C.M.R. 908, 914-15 (1958); Heichelbech v. State, 281 N.E.2d +102, 105 (Ind. 1972).

+ +

[23] 496 U.S. 582 +(1990).

+ +

[24] Id. at +598-99.

+ +

[25] Id. at +599.

+ +

[26] Id. Cf. +Braswell v. United States, 487 U.S. 99, 126 (1988) (Kennedy, J., +dissenting) ("Physical acts will constitute testimony if +they probe the state of mind, memory, perception, or cognition +of the witness").

+ +

[27] Although Counselman +v. Hitchcock, 142 U.S. 547, 586 (1892), held that a guarantee +of immunity, "to be valid, must afford absolute immunity +against future prosecution for the offense to which the questions +relates," Kastigar held that this "transactional +immunity" was unnecessary, so long as the prosecution showed +that "the evidence it proposes to use is derived from a legitimate +source wholly independent of the compelled testimony." Kastigar +v. United States, 406 U.S. 441, 460 (1972). "Immunity from +the use of compelled testimony, as well as evidence derived directly +and indirectly therefrom, affords this protection." Id. +at 453.

+ +

[28] Federal Guidelines +for Searching and Seizing Computers, 56 CRIM. +L. REP. (BNA) No. 12, at 2023, 2038 (Dec. +21, 1994).

+ +

[29] Braswell v. +United States, 487 U.S. 99, 118 (1988).

+ +

[30] United States +v. Doe, 465 U.S. 605, 612-14 (1984) (Doe I).

+ +

[31] Froomkin, supra +note 2, at 872 n.711.

+ +

[32] Fisher v. United +States, 425 U.S. 391, 410 (1976).

+ +

[33] Doe I, 465 +U.S. at 614 n.13.

+ +

[34] Id. at +613. Moreover, as the Fisher Court observed, because the +papers belonged to the accountant, the taxpayers' production of +the papers would not serve to authenticate or vouch for the accuracy +of the accountant's work. Fisher, 425 U.S. at 413. See +also Braswell v. United States, 487 U.S. 99, 104 n.3 (1988). +Accord In re Grand Jury Proceedings: Subpoenas for +Documents, 41 F.3d 377, 380 (8th Cir. 1994) (barring production, +because the government could not independently authenticate the +documents and failed to provide use immunity).

+ +

[35] Fisher, 425 +U.S. at 411.

+ +

[36] Braswell, +487 U.S. at 130 (Kennedy, J., dissenting) (noting that once immunity +is granted, the government "would be free to use the contents +of the records against everyone, and it would be free to use any +testimonial act implicit in production against all but the custodian +it selects."). Cf. Doe I, 465 U.S. at 617 n.17 (1984) +(rejecting the argument that "any grant of use immunity must +cover the contents of the documents as well as the act of production", +because "use immunity need only protect . . . from the self-incrimination +that might accompany the act of producing. . . .").

+ +

[37] Fisher +also cannot and does not purport to represent a holding on the +subject of the production of papers written by the person under +subpoena. See Fisher, 425 U.S. at 394 (the items sought +were written by the accountant, with the possible exception of +some correspondence that would have been seizable under the Boyd +case as an instrumentality of fraud).

+ +

[38] See Doe I, +465 U.S. at 615-16.

+ +

[39] Id. at +605.

+ +

[40] Doe v. United +States, 487 U.S. 201 (1988) (Doe II).

+ +

[41] Braswell v. +United States, 487 U.S. 99, 102 (1988).

+ +

[42] Kastigar v. +United States, 406 U.S. 441, 460 (1972). The statutes governing +use immunity provided by federal law are 18 U.S.C. §§ +6002, +6003 +(1994).

+ +

[43] Kastigar, +406 U.S. at 453.

+ +

[44] Id. at +460.

+ +

[45] Id. Kastigar, +by suggesting that one can use the coerced confession cases to +show when the use of evidence derived from compelled statements +is impermissible, shows that a causal relationship between the +compelled testimony and the evidence sought to be introduced is +enough. See id. at 461.

+ +

[46] Kastigar, +406 U.S. at 458-59 (quoting Murphy v. Waterfront Comm'n, 378 U.S. +52, 79 (1964)). Use immunity applies to "the compelled testimony +and its fruits." Murphy v. Waterfront Comm'n, 378 U.S. 52, +79 (1964). Under this rule, the prosecutors in a second proceeding +"have the burden of showing that their evidence is not tainted +by establishing that they had an independent, legitimate source +for the disputed evidence." Id. at 79 n.18.

+ +

[47] That the test +is one of cause in fact and not one of the use of the compelled +testimony itself seems clear from the Court's use of the "fruit +of the poisonous tree" analysis. See Kastigar, 406 +U.S. at 461. However, the analysis is stricter for compelled testimony. +Id. If the motive for a witness' testimony is immunized +testimony, the testimony of the witness who was motivated by the +immunized testimony cannot be used. United States v. North, 920 +F.2d 940, 942 & n.1 (D.C. Cir. 1990) (citing United States +v. Brimberry, 803 F.2d 908, 915-17 (7th Cir. 1986); United States +v. Hampton, 775 F.2d 1479, 1489 (11th Cir. 1985); United States +v. Kurzer, 534 F.2d 511, 517-18 (2d Cir. 1976)).

+ +

[48] 354 U.S. 118 +(1957).

+ +

[49] Braswell v. +United States, 487 U.S. 99, 114 (1988) (citing Curcio, +354 U.S. at 123-24).

+ +

[50] Gouled v. United +States, 255 U.S. 298, 306 (1921) (Clarke, J., for a unanimous +court). Gouled expressly held that when a government agent +seized documents in violation of the Fourth Amendment, their introduction +into court violated the Fifth Amendment. Id. See also, +e.g., Olmstead v. United States, 277 U.S. 438, 478-79 (1928) +(Brandeis, J., dissenting) ("To protect that right [of privacy], +every unjustifiable intrusion by the Government upon the privacy +of the individual, whatever the means employed, must be deemed +a violation of the Fourth Amendment. And the use, as evidence +in a criminal proceeding, of facts ascertained by such intrusion +must be deemed a violation of the Fifth."); Silverthorne +Lumber Co. v. United States, 251 U.S. 385, 391 (1920) (Holmes, +J.).

+ +

[51] Gouled, +255 U.S. at 306.

+ +

[52] Braswell v. +United States, 487 U.S. 99, 130 (1988) (Kennedy, J., dissenting) +(once immunity is granted, the government "would be free +to use the contents of the records against everyone, and it would +be free to use any testimonial act implicit in production against +all but the custodian it selects").

+ +

[53] A possible analogy +is the compulsory interpretation of documents. My research has +turned up no cases involving interpretation. Independently, Froomkin +states, "I have been unable to find a single criminal case +in which the government has attempted to force a defendant to +translate her message." Froomkin, supra note +2, at 866 +n.687. +One civil case upheld a witness' refusal to explain a tape, though +he was the only one who could do it. Traficant v. Commissioner, +89 T.C. 501 (1987), aff'd, 884 F.2d 258 (6th Cir. 1989). +The compulsory production of a cryptographic key is not so invasive +in one respect as compulsory interpretation, because there is +no judgment involved or continuing cognitive work involved in +producing the key: either it works or it does not work.

+ +

[54] Doe v. United +States, 487 U.S. 201, 210 (1988) (Doe II).

+ +

[55] United States +v. Euge, 444 U.S. 707, 717 n.11 (1980) (citing United States v. +Dionisio, 410 U.S. 1, 6 (1973)).

+ +

[56] United States +v. Doe, 465 U.S. 605, 611 (1984) (Doe I) (quoting Fisher v. United +States, 425 U.S. 391, 409 (1976)).

+ +

[57] Counselman v. +Hitchcock, 142 U.S. 547, 566 (1892).

+ +

[58] E.g., +United States v. Sindel, 53 F.3d 874, 876 (8th Cir. 1995) (client +identity and fee information not ordinarily privileged, but would +be privileged where they would supply the last link in implicating +the client or revealing confidential communications); United States +v. Sanders, 979 F.2d 87, 91 (7th Cir. 1992); In re Grand +Jury Proceedings, 946 F.2d 746, 748 (11th Cir. 1991) (concern +for own liability); In re Grand Jury Proceedings, 906 F.2d +1485, 1491 (10th Cir. 1990) (semble); In re Grand Jury +Subpoenas, 896 F.2d 1267, 1273 (11th Cir. 1990); In re +Grand Jury Proceedings, 680 F.2d 1026, 1027 (5th Cir. 1982) (last +link test); NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965) +(the identity of the client may be privileged "when so much +of the actual communication has already been disclosed that identification +of the client amounts to a disclosure of a confidential communication"); +State v. Lamb, 690 P.2d 764, 769 (Ariz. 1984) (semble).

+ +

[59] See Froomkin, +supra note 2, at 895-97.

+ +

[60] See id. +at 888-89.

+ +

[61] Andresen v. +Maryland, 427 U.S. 463, 473-74 (1976).

+ +

[62] Id. at +475 (citing Bellis v. United States, 417 U.S. 85, 88 (1974)).

+ +

[63] United States +v. Doe, 465 U.S. 605, 614 n.13 (1984) (Doe I).

+ +

[64] Id. (quoting +Fisher v. United States, 425 U.S. 391, 411 (1976)).

+ +

[65] 24 CHARLES +A. WRIGHT & KENNETH +W. GRAHAM, JR., +FEDERAL PRACTICE +AND PROCEDURE: EVIDENCE § 5484, at 337 & n.140 (1986).

+ +

[66] See cases +cited supra note 6.

+ +

[67] 493 U.S. 549 +(1990).

+ +

[68] In re Grand +Jury Subpoena Duces Tecum Dated October 29, 1992, 1 F.3d 87, 92 +(2d Cir. 1993).

+ +

[69] Id. at +95 (Altimari, J., dissenting).

+ +

[70] Hale v. Henkel, +201 U.S. 43, 74-75 (1906). Thus, where privacy is not an issue, +as under the Fourth Amendment's protection from searches and seizures +and the takings clauses, the corporations have the same rights +as individuals. Id. at 76.

+ +

[71] Pennsylvania +v. Muniz, 496 U.S. 582, 595 n.8 (1990) (quoting Doe v. United +States, 487 U.S. 201, 212-13 (1988) (quoting Murphy v. Waterfront +Comm'n, 378 U.S. 52, 55 (1964) (internal citations omitted))). +This language from Murphy has also been quoted in other +cases. E.g., Couch v. United States, 409 U.S. 322, 328 +(1973).

+ +

[72] 116 U.S. 616 +(1886).

+ +

[73] Id. at +634-35. Cases after Boyd observe that a search for papers +that the government seizes by main force was as much a "physical +compulsion" as the threat of a contempt sentence for failure +to produce. See, e.g., Gouled v. United States, 255 U.S. +298, 305-06 (1921).

+ +

[74] Boyd, +116 U.S. at 622-30.

+ +

[75] Id. at +623.

+ +

[76] Id.

+ +

[77] Id. at +624.

+ +

[78] Gouled v. United +States, 255 U.S. 298, 308 (1921) (burglars' tools and weapons).

+ +

[79] Id. at +309 ("[s]tolen or forged papers" and "contracts +. . . used as instruments or agencies for perpetrating frauds.").

+ +

[80] See Boyd, +116 U.S. at 626-27, 630.

+ +

[81] Id. at +630.

+ +

[82] Id. at +630-32.

+ +

[83] Id. at +622-23.

+ +

[84] Id. at +629.

+ +

[85] Id. at +631-32.

+ +

[86] Id. at +622-23.

+ +

[87] Id. at +633. Cf. BERNARD BAILYN, +THE IDEOLOGICAL +ORIGINS OF THE AMERICAN REVOLUTION +vii-viii (1967) (arguing the influence of British legal precedents +on American institutions at the framing).

+ +

[88] Gouled v. United +States, 255 U.S. 298, 308-09 (1921) (Clarke, J., for a unanimous +court).

+ +

[89] E.g., +Fisher v. United States, 425 U.S. 391, 407 (1975) (suggesting +only that Boyd has "not stood the test of time").

+ +

[90] United States +v. Poller, 43 F.2d 911, 914 (2d Cir. 1930).

+ +

[91] Id.

+ +

[92] See Katz +v. United States, 389 U.S. 347 (1967).

+ +

[93] See Hale +v. Henkel, 201 U.S. 43, 74-75 (1906).

+ +

[94] See Fisher +v. United States, 425 U.S. 391, 411-12 (1975); Braswell v. United +States, 487 U.S. 99, 112 (1988).

+ +

[95] Cf. 18 +U.S.C. § 1961(4) (1988) (defining "enterprise" +in the Racketeer Influenced and Corrupt Organizations Act to include +associations in fact that were not legal entities); National Org. +for Women, Inc. v. Scheidler, 114 S. Ct. 798, 803-04 (1994) (noting +broad definition of "enterprise").

+ +

[96] See Gouled +v. United States, 255 U.S. 298, 309 (1921).

+ +

[97] Couch v. United +States, 409 U.S. 322, 350 (1973) (Marshall, J., dissenting).

+ +

[98] Hale v. Henkel, +201 U.S. 43, 69-70 (1906).

+ +

[99] Couch, +409 U.S. at 328. This is congruent with the Fourth Amendment, +which does not protect misplaced confidence, and so avoids privacy +issues. Hoffa v. United States, 385 U.S. 293, 302 (1966).

+ +

[100] United States +v. Saline Bank, 26 U.S. (1 Pet.) 100, 104 (1828).

+ +

[101] Id. +The Court rejected Justice Harlan's argument that "Saline +Bank stands for no constitutional principle whatever." +Murphy v. Waterfront Comm'n, 378 U.S. 52, 69 n.11 (1964) (criticizing +Hutcheson v. United States, 369 U.S. 599, 608 n.13 (1962) +(Harlan, J., plurality opinion) (citing 2 JOSEPH +STORY, COMMENTARIES +ON EQUITY, § +1494 n.1 (1836))).
+Early commentators have likewise concluded that the privilege +protects against "the production of documents or chattels +by a person (whether ordinary witness or party witness) in response +to a subpoena, or to a motion to order production, or to other +form of process relying on his moral responsibility for truthtelling." +See 8 WIGMORE, supra note 21, § 2264, at 379 n.1 (emphasis in +original). Pennsylvania v. Muniz, 496 U.S. 582 (1990), goes beyond +Wigmore by prohibiting the use of information that was not sought +for its truth and by suggesting that prohibition extends to the +use of physical data as part of a lie-detector test. Wigmore does +suggest that the testimonial content is "the witness' assurance, +compelled as an incident of the process, that the articles produced +are the ones demanded." Id. at 380, cited with +approval in Fisher v. United States, 425 U.S. 391, 411 (1975).

+ +

[102] Hale v. Henkel, +201 U.S. 43, 76 (1906). Accord Weeks v. United States, +232 U.S. 383, 397 (1914) (quoting Hale).

+ +

[103] 255 U.S. +298 (1921).

+ +

[104] Id. +at 306.

+ +

[105] Olmstead +v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); +Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391 (1920) +(Holmes, J.).

+ +

[106] See, +e.g., United States v. White, 322 U.S. 694, 698 (1944); +Wilson v. United States, 221 U.S. 361, 377 (1911).

+ +

[107] 410 U.S. +1 (1973).

+ +

[108] Id. +at 11.

+ +

[109] Andresen +v. Maryland, 427 U.S. 463, 475 (1976) (citing Bellis v. United +States, 417 U.S. 85, 88 (1974) (quoting United States v. White, +322 U.S. 694, 698 (1944))).

+ +

[110] Id. +at 473-74.

+ +

[111] Id. +("Thus, although the Fifth Amendment may protect an individual +from complying with a subpoena for the production of his personal +records in his possession because the very act of production may +constitute a compulsory authentication of incriminating information, +. . . a seizure of the same materials by law enforcement officers +differs in a crucial respect, -- the individual against whom the +search is directed is not required to aid in the discovery, production, +or authentication of incriminating evidence."). Id.

+ +

[112] Warden v. +Hayden, 387 U.S. 294, 301-02 (1967).

+ +

[113] Id. +at 302-03.

+ +

[114] Fisher v. +United States, 425 U.S. 391, 401 n.7 (1976).

+ +

[115] See Warden +v. Hayden, 387 U.S. 294, 301-02 (1967).

+ +

[116] Johnson v. +United States, 228 U.S. 457, 458 (1913). Holmes' opinion was quoted +by the Court in Couch v. United States, 409 U.S. 322, 328 (1973). +Couch further suggested that the Fifth Amendment might +be violated by "[i]nquisitorial pressure . . . to . . . produce +incriminating documents," but there was no such pressure +"[i]n the present case." Id. at 329.

+ +

[117] See Andresen +v. Maryland, 427 U.S. 463, 473 (1976); Couch, 409 U.S. +at 328.

+ +

[118] Johnson, +228 U.S. at 458. The defendant objected to the bankruptcy trustee's +producing records that incriminated the bankrupt person. Id.

+ +

[119] Holt v. United +States, 218 U.S. 245, 252-53 (1910) (Holmes, J.).

+ +

[120] Id. +at 252-53 (emphasis added).

+ +

[121] Silverthorne +Lumber Co. v. United States, 251 U.S. 385, 391 (1920).

+ +

[122] Hale v. Henkel, +201 U.S. 43, 76 (1906). Accord Weeks v. United States, +232 U.S. 383, 397 (1914).

+ +

[123] Gouled v. +United States, 255 U.S. 298, 306 (1921).

+ +

[124] Fisher v. +United States, 425 U.S. 391 (1976).

+ +

[125] Id.

+ +

[126] Id.

+ +

[127] Id. +at 411. (The Court's concern for testimonial incrimination may +have been dictated by Curcio v. United States, 354 U.S. 118, 125 +(1957), which held that because production identified and authenticated +a document, further compulsory identification or authentication +did not violate the privilege.)

+ +

[128] Id. +at 497 (emphasis added). See also id. at 510-511.

+ +

[129] The Court +has the power to fashion a common-law privilege under Federal +Rule of Evidence 501. Cf. Trammel v. United States, 445 +U.S. 40 (1980) (narrowing common law privilege against adverse +spousal testimony). The Court has in the past held that a privilege +exists against discovery of material that would expose a party +to penalties. United States v. Saline Bank, 26 U.S. (1 Pet.) 100, +104 (1828) (Marshall, C.J.) ("The rule clearly is, that a +party is not bound to make any discovery which would expose him +to penalties, and this case falls within it."). Of course, +a non-constitutional privilege rule would not apply to the states +or, in current law, in diversity cases in federal court. FED. R. EVID. 501.

+ +

[130] 24 WRIGHT & GRAHAM, supra +note 65, § 5484, at 324 & n.42 (citing +JOHN HENRY WIGMORE, WIGMORE'S CODE OF +THE RULES OF EVIDENCE § 2436 +(3d ed. 1942)) (attorney); 25 WRIGHT & +GRAHAM, supra note +65, § 5572, at 473 (spouse).

+ +

[131] 5 WRIGHT & GRAHAM, supra +note 65, § 5572, at 479. See also id. +at 493 (discussing marital privilege in relation to self-incrimination).

+ +

[132] E.g., +In re Grand Jury Proceedings, 600 F.2d 215 (9th Cir. 1979) +(shielding fee payments); In re Grand Jury Proceedings, +517 F.2d 666, 670-71 & nn. 2-3 (5th Cir. 1975) (semble, collecting +cases); Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960) (anonymous +restitution to IRS through attorney); Tillotson v. Boughner, 350 +F.2d 663 (7th Cir. 1965) (semble).

+ +

[133] Upjohn Corp. +v. United States, 449 U.S. 383 (1981). See Note, Privileged +Communications: Inroads on the "Control Group" Test +in the Corporate Area, 22 SYR. L. REV. 759, 762 (1971); David Simon, The Attorney-Client +Privilege As Applied to Corporations, 65 YALE +L.J. 953, 955-56 (1956); Note, Attorney Client Privilege for +Corporate Clients: The Control Group Test, 84 HARV. +L. REV. 424, 427 (1970).

+ +

[134] 26 WRIGHT & GRAHAM, supra +note 65, § 5663, at 20 (Supp. 1995).

+ +

[135] Bredice v. +Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd, +479 F.2d 920 (D.C. Cir. 1973) (protecting minutes of hospital +staff meetings regarding improvement in patient care from discovery +in a malpractice suit); Health Care Quality Improvement Act of +1986, 42 U.S.C. § 11112(a) +(1988).

+ +

[136] Fourteen +states have environmental audit privilege laws. Those states are: +Arkansas, 1995 ARK. ACTS +350; Colorado, COLO. REV. +STAT. ANN. § +13-25-126.5 (West 1987 & Supp. 1995); Idaho, IDAHO +CODE § 9-802 (1990 & Supp. 1995); +Illinois, ILL. ANN. +STAT. ch. 415, para. 5/52.2 (Smith-Hurd +1993 & Supp. 1995); Indiana, IND. CODE ANN. § 13-10-3-3 +(Burns 1990 & Supp. 1995); Kansas, 1995 Kan. Sess. Laws 204; +Kentucky, KY. REV. +STAT. ANN. § +224.01-040 (Michie/Bobbs-Merrill 1995); Minnesota, 1995 Minn. +Sess. Law Serv. 168 +(West); Mississippi, 1995 Miss. Laws 627; Oregon, OR. +REV. STAT. § +468.963 (1992 & Supp. 1994); Texas, 1995 Tex. Sess. Law Serv. +219 +(Vernon); Utah, UTAH CODE +ANN. § 19-7-104 (1995); Virginia, +VA. CODE ANN. §10.1-1198 (Michie 1993 & Supp. +1995); and Wyoming, WYO. STAT. +§ 35-11-1105 (1994 & Supp. 1995).

+ +

[137] See +Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV. 1083 (1983). +But see University of Pennsylvania v. EEOC, 493 U.S. 182, +189 (1990) (no privilege of "self-critical analysis" +to protect routine internal corporate reviews of safety-related +matters); Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, +425-27 (9th Cir. 1992).

+ +

[138] 387 U.S. +294 (1967).

+ +

[139] 387 U.S. +294, 304 (1967).

+ +

[140] 389 U.S. +347, 353 (1967).

+ +

[141] Id. +at 353.

+ +

[142] See Warden, +387 U.S. at 310 (Fortas, J., joined by Warren, C.J., concurring +in the result) (rejecting the "totally unnecessary . . . +repudiation of the so-called 'mere evidence' rule").

+ +

[143] Id. +at 305-06 (citing Silverthorne Lumber Co. v. United States, 251 +U.S. 385 (1920) (Holmes, J.); Gouled v. United States, 255 U.S. +298, 308-09 (1921)). Moreover, even if there were no protection +against the government's seizure of the property, a search might +still offend the Fourth Amendment. See United States v. +Jacobsen, 466 U.S. 109, 122 n.22 (1984).

+ +

[144] See International +News Serv. v. Associated Press, 248 U.S. 215, 240-41 (1918).

+ +

[145] See, +e.g., RESTATEMENT (THIRD) +OF UNFAIR COMPETITION, at XI (1995) (describing "increase +in the commercial and financial significance of intellectual property"); +Id. § 38 (protecting against appropriation of trade +secrets or the commercial value of another's identity); Note, +An Assessment of the Commercial Exploitation Requirement as +a Limit on the Right of Publicity, 96 HARV. +L. REV. 1703 (1983); George M. Armstrong, +Jr., The Reification of Celebrity: Persona As Property, +51 LA. L. REV. 443 +(1991); Midler v. Ford Motor Co., 849 F.2d 460, 462-63 (9th Cir. +1988).

+ +

[146] See +RESTATEMENT (THIRD) +OF UNFAIR COMPETITION, § 43 (1995) (trade secret protection +against information gained from "an unauthorized interception +of communications"). "A most fundamental human right, +that of privacy, is threatened when industrial espionage is condoned +or is made profitable." Kewanee Oil Co. v. Bicron Corp., +416 U.S. 470, 476 (1974) (Burger, C.J.).

+ +

[147] Rakas v. +Illinois, 439 U.S. 128, 143-44 n.12 (1978).

+ +

[148] Minnesota +v. Olson, 495 U.S. 91, 95-96 (1990) (quoting Rakas v. Illinois, +439 U.S. 128, 143 n.12 (1978) (adopting the reasonableness requirement +from Justice Harlan's concurring opinion, Katz v. United States, +389 U.S. 347, 361 (1967) (Harlan, J., concurring))).

+ +

[149] Rakas v. +Illinois, 439 U.S. 128, 143 n.12 (1978) (citing Katz v. United +States, 389 U.S. at 361 (Harlan, J., concurring)).

+ +

[150] Id.

+ +

[151] Id.

+ +

[152] United States +v. Jacobsen, 466 U.S. 109, 122 n.22 (1984).

+ +

[153] Id. at +124 n.24.

+ +

[154] Harlow v. +Fitzgerald, 457 U.S. 800, 818 (1982) (providing immunity from +a civil claim "insofar as [defendants'] conduct [did] not +violate clearly established statutory or constitutional rights +of which a reasonable person would have known").

+ +

[155] California +v. Greenwood, 486 U.S. 35, 44 (1988) (using privacy, not property +arguments, to uphold a search and seizure of garbage, despite +the state court's decision that state law created property interests +in garbage). Some state courts have subsequently rejected the +United States Supreme Court's finding that there is no reasonable +expectation of privacy in garbage. State v. Hempele, 576 A.2d +793 (N.J. 1990); State v. Boland, 800 P.2d 1112 (Wash. 1990).

+ +

[156] Cf. +Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) (allowing federal courts +to ignore state-court rulings on matters of state law), overruled +on other grounds, Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

+ +

[157] Compare, +e.g., Smith v. Maryland, 442 U.S. 735 (1979) (acquisition +of telephone numbers dialed with a pen register did not intrude +on dialer's expectation of privacy) with State v. Hunt, +450 A.2d 952, 955 (N.J. 1982) (contra); People v. Blair, 602 P.2d +738, 746 (Cal. 1979) (contra); Commonwealth v. Beauford, 475 A.2d +783, 791 (Pa. 1984) (contra); People v. Sporleder, 666 P.2d 135 +(Colo. 1983) (contra); State v. Gunwall, 720 P.2d 808, 813 (Wash. +1986) (contra); State v. Thompson, 760 P.2d 1162 (Idaho 1988) +(contra); Rothman v. State, 779 P.2d 1, 7 (Haw. 1989) (contra); +Richardson v. State, 865 S.W.2d 944, 952-53 (Tex. Cr. App. 1993) +(en banc) (contra).

+ +

[158] Griswold +v. Connecticut, 381 U.S. 479, 509 (1965) (Black, J., dissenting) +("'Privacy' is a broad, abstract and ambiguous concept which +can easily be shrunken in meaning but which can also, on the other +hand, easily be interpreted as a constitutional ban against many +things other than searches and seizures.").

+ +

[159] Compare +Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974) +(citing with approval E.I. duPont deNemours & Co. v. Christopher, +431 F.2d 1012 (5th Cir. 1970) (holding that overflights are an +invasion of trade secrets), cert. denied, 400 U.S. 1024 +(1971)) with California v. Ciraolo, 476 U.S. 207 (1986) +(the Fourth Amendment does not bar such overflights) (reversing +People v. Ciraolo, 161 Cal. App. 3d 1081, 1090, 208 Cal. Rptr. +93, 98 (1984) ("the area searched was within defendant's +curtilage wherein he could reasonably entertain an expectation +of privacy")); Dow Chemical Co. v. United States, 476 U.S. +227, 231-32 (1986) (Burger, C.J.) (allowing overflights under +the Fourth Amendment and expressly distinguishing trade secrets +issues) and with RESTATEMENT (THIRD) OF UNFAIR +COMPETITION, § 43 illustration 3 (1995) +(trade secret protection against information gained from an overflight). +Compare Hoffa v. United States, 385 U.S. 293, 302 (1966) +(misplaced confidences are not protected by the Fourth Amendment) +and Smith v. Maryland, 442 U.S. 735, 743-744 (1979) (pen +registers are not protected because the phone company knows the +number called) with RESTATEMENT +(THIRD) OF UNFAIR COMPETITION § +41 (1995) (giving trade secrets to someone does not permit that +person to pass on the trade secrets to another).

+ + \ No newline at end of file diff --git a/MultiObfuscator/html/doc/physical_coercion.txt b/MultiObfuscator/html/doc/physical_coercion.txt new file mode 100644 index 0000000..bdf4745 --- /dev/null +++ b/MultiObfuscator/html/doc/physical_coercion.txt @@ -0,0 +1,133 @@ +mgraffam@mhv.net writes: + +> I figure the best we can do is to hide the contents of S with crypto and +> hide its existence through other means. Traditional stego works well +> for this latter goal, but it does not give us a way to cough up something +> meaningful in place of S, which could be very handy. +> +> In short, certainly the existence of S needs to be hidden, and it would be +> best to do hide it in plain sight as it were, in a big junk pile with +> everything else on the drive. +> +> Indexing this huge mess of data to allow for a practical system to work +> with is certainly a challenge, and in all likelyhood impossible given the +> parameters of the system. +> + +Rubberhose (our rubber-hose proof filing system) addresses most of these +technical issues, but I'd like to just comment on the best strategy +game-theory wise, for the person wielding the rubber-hose. + +In Rubberhose the number of encrypted aspects (deniable "virtual" +partitions) defaults to 16 (although is theoretically unlimited). As +soon as you have over 4 pass-phrases, the excuse "I can't recall" +or "there's nothing else there" starts to sound highly plauseable. + +Ordinarily best strategy for the rubber-hose wielder is to keep on +beating keys out of (let us say, Alice) indefinitely till there are no +keys left. However, and importantly, in Rubberhose, *Alice* can never +prove that she has handed over the last key. As Alice hands over more +and more keys, her attackers can make observations like "the keys +Alice has divulged correspond to 85% of the bits". However at no point +can her attackers prove that the remaining 15% don't simply pertain to +unallocated space, and at no point can Alice, even if she wants to, +divulge keys to 100% of the bits, in order to bring the un-divulged +portion down to 0%. An obvious point to make here is that +fraction-of-total-data divulged is essentially meaningless, and both +parties know it - the launch code aspect may only take up .01% of the +total bit-space. + +What I find interesting, is how this constraint on Alice's behaviour +actually protects her from revealing her own keys, because each party, +at the outset can make the following observations: + +Rubber-hose-squad: We will never be able to show that Alice has + revealed the last of her keys. Further, even if + Alice has co-operated fully and has revealed all of + her keys, she will not be able to prove it. + Therefor, we must assume that at every stage that + Alice has kept secret information from us, and + continue to beat her, even though she may have + revealed the last of her keys. But the whole time + we will feel uneasy about this because Alice may + have co-operated fully. Alice will have realised this + though, and so presumably it's going to be very hard + to get keys out of her at all. + + +Alice: (Having realised the above) I can never prove that I + have revealed the last of my keys. In the end I'm + bound for continued beating, even if I can buy + brief respites by coughing up keys from time to + time. Therefor, it would be foolish to divulge my + most sensitive keys, because (a) I'll be that much + closer to the stage where I have nothing left to + divulge at all (it's interesting to note that this + seemingly illogical, yet entirely valid argument of + Alice's can protect the most sensitive of Alice's + keys the "whole way though", like a form + mathematical induction), and (b) the taste of truly + secret information will only serve to make my + aggressors come to the view that there is even + higher quality information yet to come, re-doubling + their beating efforts to get at it, even if I have + revealed all. Therefor, my best strategy would be + to (a) reveal no keys at all or (b) depending on + the nature of the aggressors, and the psychology of + the situation, very slowly reveal my "duress" and + other low-sensitivity keys. + +Alice certainly isn't in for a very nice time of it (although she +she's far more likely to protect her data). + +On the individual level, you would have to question whether you might +want to be able to prove that, yes, infact you really have surrendered +the last remaining key, at the cost of a far greater likelihood that +you will. It really depends on the nature of your opponents. Are they +intelligent enough understand the deniable aspect of the cryptosystem +and come up with the above strategy? Determined to the aspect they +are willing to invest the time and effort in wresting the last key out of +you? Ruthless - do they say "Please", hand you a Court Order, or is it +more of a Room 101 affair? + +But there's more to the story. + +Organisations and groups may have quite different strategic goals in +terms of key retention vs torture relief to the individuals that +comprise them, even if their views are otherwise co-aligned. +A simple democratic union of two or more people will exhibit this behaviour. + +When a member of a group, who uses conventional cryptography to +protect group secrets is rubber-hosed, they have two choices (1) +defecting (by divulging keys) in order to save themselves, at the cost +of selling the other individuals in the group down the river or (2) +staying loyal, protecting the group and in the process subjugating +themselves to continued torture. + +With Rubberhose-style deniable cryptography, the benefits to a group +memember from choosing tactic 1 (defection). are subdued, because +they will never be able to convince their interrogators that they have +defected. Rational individuals that are `otherwise loyal'" to the +group, will realise the minimal gains to be made in chosing defection +and choose tactic 2 (loyalty), instead. + +Presumably most people in the group do not want to be forced to give +up their ability to choose defection. On the other hand, no one in the +group wants anyone (other than themselves) in the group to be given +the option of defecting against the group (and thus the person making +the observation). Provided no individual is certain* they are to be +rubber-hosed, every individual will support the adoption of a +group-wide Rubberhose-style cryptographically deniable crypto-system. +This property is communitive, while the individual's desire to be able +to choose defection is not. The former every group member wants for +every other group memeber, but not themselves. The latter each group +memeber wants only for themself. + +* "certain" is a little misleading. Each individual has a threshold + which is not only proportional to the the perceived likely hood + of being rubberhosed over ones dislike of it, but also includes + the number of indviduals in the group, the damage caused by a + typical defection to the other members of the group etc. + +Cheers, +Julian diff --git a/MultiObfuscator/html/images/MultiObfuscator.jpg b/MultiObfuscator/html/images/MultiObfuscator.jpg new file mode 100644 index 0000000..69fe6ec Binary files /dev/null and b/MultiObfuscator/html/images/MultiObfuscator.jpg differ diff --git a/MultiObfuscator/html/images/MultiObfuscator_Screenshot.jpg b/MultiObfuscator/html/images/MultiObfuscator_Screenshot.jpg new file mode 100644 index 0000000..b956816 Binary files /dev/null and b/MultiObfuscator/html/images/MultiObfuscator_Screenshot.jpg differ diff --git a/MultiObfuscator/html/images/email-support.png b/MultiObfuscator/html/images/email-support.png new file mode 100644 index 0000000..e3b6f68 Binary files /dev/null and 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b/MultiObfuscator/html/images/xml.jpg new file mode 100644 index 0000000..72edf1a Binary files /dev/null and b/MultiObfuscator/html/images/xml.jpg differ diff --git a/MultiObfuscator/html/images/youtube.png b/MultiObfuscator/html/images/youtube.png new file mode 100644 index 0000000..9d7aded Binary files /dev/null and b/MultiObfuscator/html/images/youtube.png differ diff --git a/MultiObfuscator/html/images/zip.jpg b/MultiObfuscator/html/images/zip.jpg new file mode 100644 index 0000000..547aa8d Binary files /dev/null and b/MultiObfuscator/html/images/zip.jpg differ diff --git a/MultiObfuscator/html/multiobfuscator_pad.xml b/MultiObfuscator/html/multiobfuscator_pad.xml new file mode 100644 index 0000000..05bde0a --- /dev/null +++ b/MultiObfuscator/html/multiobfuscator_pad.xml @@ -0,0 +1,146 @@ + + + + 3.11 + PADGen 3.1.1.47 http://www.padgen.org + Portable Application Description, or PAD for short, is a data set that is used by shareware authors to disseminate information to anyone interested in their software products. To find out more go to http://pad.asp-software.org + + + EmbeddedSW + + + + + + + http://embeddedsw.net/ + + EmbeddedSW + + embedded@embeddedsw.net + EmbeddedSW + + embedded@embeddedsw.net + + + embedded@embeddedsw.net + embedded@embeddedsw.net + embedded@embeddedsw.net + + + + + + + + MultiObfuscator Cryptography & Obfuscation + 2.00 + 03 + 04 + 2014 + 0 + + + Freeware + Major Update + No Install Support + Win2000,Win8 x32,Win8 x64,Win7 x32,Win7 x64,Win98,WinVista,WinVista x64,WinXP + English,Italian + + Utilities + Security & Privacy::Encryption Tools + + + 7429514 + 7255 + 7.08 + + + N + + + + + + + + + + + Cryptography Obfuscation Binary Text Email + Professional Cryptography SW + Professional Cryptography & Obfuscation SW - Binary & Text/Email Mode + Professional Cryptography & Obfuscation SW - Binary & Text/Email Mode - http://embeddedsw.net/MultiObfuscator_Cryptography_Home.html [Home & Help] + Professional Cryptography & Obfuscation SW - Binary & Text/Email Mode - http://embeddedsw.net/MultiObfuscator_Cryptography_Home.html [Home & Help] + [Home & Help] http://embeddedsw.net/MultiObfuscator_Cryptography_Home.html + +MultiObfuscator is a professional cryptography tool + +- HW seeded random number generator (CSPRNG) +- Deniable cryptography +- Up to 256Mb of secret file (binary mode) +- Up to 256Kb of secret text (text/email mode) +- Whitening selection level +- Modern multi-cryptography (16 algorithms) +- Multi-layered data obfuscation (4 passwords) +- Chi-squared steganalysis resistance + +Unique layers of security and obfuscation + +- 256bit+256bit symmetric-key cryptography with KDF4 password extension +- 256bit symmetric-key data scrambling (CSPRNG-based shuffling) +- 256bit symmetric-key data whitening (CSPRNG-based noise mixing) +- Adaptive Chi-squared correction + +MultiObfuscator is a portable/stealth software + +- Native portable structure (no installation, registry keys, .ini files) +- Data Execution Prevention (DEP) support + +MultiObfuscator is freeware! + +- Spyware/adware-free +- Fully redistributable +- OpenSource core crypto-library (libObfuscate) + + + + + + http://embeddedsw.net/MultiObfuscator_Cryptography_Home.html + http://embeddedsw.net/MultiObfuscator_Cryptography_Home.html + http://embeddedsw.net/images/MultiObfuscator_Screenshot.jpg + http://embeddedsw.net/images/MultiObfuscator.jpg + http://embeddedsw.net/multiobfuscator_pad.xml + + + http://embeddedsw.net/zip/MultiObfuscator.zip + + + + + + + Project/Software name: MultiObfuscator v2.00 +Contact: "EmbeddedSW" - embedded@embeddedsw.net +Company: EmbeddedSW.net + +THIS IS A FREEWARE SOFTWARE + +This software is released under: + +* CC-BY 4.0: http://creativecommons.org/licenses/by/4.0/ + +You're free to copy, distribute and make commercial use +of this software under the following conditions: + +* You have to cite the author (and copyright owner): EmbeddedSW.net +* You have to provide a link to the author's Homepage: http://www.embeddedsw.net + + Disclaimer +- this program was not written for illegal use +- usage of this program that may violate your country's laws is severely forbidden +- the author declines all responsibilities for improper use of this program + + + diff --git a/MultiObfuscator/html/styles/back.gif b/MultiObfuscator/html/styles/back.gif new file mode 100644 index 0000000..700af16 Binary files /dev/null and b/MultiObfuscator/html/styles/back.gif differ diff --git a/MultiObfuscator/html/styles/contact.js b/MultiObfuscator/html/styles/contact.js new file mode 100644 index 0000000..bf576d9 --- /dev/null +++ b/MultiObfuscator/html/styles/contact.js @@ -0,0 +1,13 @@ +var contact = '

 

'+ +'

Contact Us

'+ +''+ +''+ +'

'+ +'email-support.png '+ +'skype.png '+ +'facebook.png '+ +'youtube.png '+ +'

'+ +'

 

'; + +document.write(contact); \ No newline at end of file diff --git a/MultiObfuscator/html/styles/footer.js b/MultiObfuscator/html/styles/footer.js new file mode 100644 index 0000000..5917c37 --- /dev/null +++ b/MultiObfuscator/html/styles/footer.js @@ -0,0 +1,4 @@ +var footer = '

Design by EmbeddedSW.net | SquirrelMail | Worldwide DNS propagation

'+ +'

Pictures and media inside this domain are released under Creative Commons 3.0

'; + +document.write(footer); \ No newline at end of file diff --git a/MultiObfuscator/html/styles/global_sidebar.js b/MultiObfuscator/html/styles/global_sidebar.js new file mode 100644 index 0000000..ce2a085 --- /dev/null +++ b/MultiObfuscator/html/styles/global_sidebar.js @@ -0,0 +1,30 @@ +var global_sidebar = '

 

'+ +''+ +'
'+ +''+ +'
'+ +''+ +'

Worldwide Visitors

'+ +''+ +''+ +''+ +'
'+ +''+ +'facebook.jpg'+ +''+ +''+ +''+ +''+ +''+ +''+ +'
'+ +'

 

'; + +document.write(global_sidebar); \ No newline at end of file diff --git a/MultiObfuscator/html/styles/logo.gif b/MultiObfuscator/html/styles/logo.gif new file mode 100644 index 0000000..35a908a Binary files /dev/null and b/MultiObfuscator/html/styles/logo.gif differ diff --git a/MultiObfuscator/html/styles/menu.css b/MultiObfuscator/html/styles/menu.css new file mode 100644 index 0000000..65506bb --- /dev/null +++ b/MultiObfuscator/html/styles/menu.css @@ -0,0 +1,125 @@ + +#cssmenu { + height:37px; + display:block; + padding:0; + margin: 0; + border:1px solid; + border-radius:5px; } + +#cssmenu > ul { + list-style:inside none; + padding:0; + margin:0; } + +#cssmenu > ul > li { + list-style:inside none; + padding:0; + margin:0; + float:left; + display:block; + position:relative; } + +#cssmenu > ul > li > a { + outline:none; + display:block; + position:relative; + padding:12px 20px; + font:bold 13px/100% Arial, Helvetica, sans-serif; + text-align:center; + text-decoration:none; + text-shadow:1px 1px 0 rgba(0,0,0, 0.4); } + +#cssmenu > ul > li:first-child > a { + border-radius:5px 0 0 5px; } + +#cssmenu > ul > li > a:after { + content:''; + position:absolute; + border-right:1px solid; + top:-1px; bottom:-1px; + right:-2px; z-index:99; } + +#cssmenu ul li.has-sub:hover > a:after { + top:0; + bottom:0; } + +#cssmenu > ul > li.has-sub > a:before { + content:''; + position:absolute; + top:18px; + right:6px; + border:5px solid transparent; + border-top:5px solid #fff; } + +#cssmenu > ul > li.has-sub:hover > a:before { + top:19px; } + +#cssmenu ul li.has-sub:hover > a { + background:#3f3f3f; + border-color:#3f3f3f; + padding-bottom:13px; + padding-top:13px; + top:-1px; + z-index:999; } + +#cssmenu ul li.has-sub:hover > ul, #cssmenu ul li.has-sub:hover > div { + display:block; } + +#cssmenu ul li.has-sub > a:hover { + background:#3f3f3f; + border-color:#3f3f3f; } + +#cssmenu ul li > ul, #cssmenu ul li > div { + display:none; + width:auto; + position:absolute; + top:38px; + padding:10px 0; + background:#3f3f3f; + border-radius:0 0 5px 5px; + z-index:999; } + +#cssmenu ul li > ul { + width:200px; } + +#cssmenu ul li > ul li { + display:block; + list-style:inside none; + padding:0; + margin:0; + position:relative; } + +#cssmenu ul li > ul li a { + outline:none; + display:block; + position:relative; + margin:0; + padding:8px 20px; + font:10pt Arial, Helvetica, sans-serif; + color:#fff; + text-decoration:none; + text-shadow:1px 1px 0 rgba(0,0,0, 0.5); } + +#cssmenu, #cssmenu > ul > li > ul > li a:hover { + background:#333333; + background:-moz-linear-gradient(top, #333333 0%, #222222 100%); + background:-webkit-gradient(linear, left top, left bottom, color-stop(0%,#333333), color-stop(100%,#222222)); + background:-webkit-linear-gradient(top, #333333 0%,#222222 100%); + background:-o-linear-gradient(top, #333333 0%,#222222 100%); + background:-ms-linear-gradient(top, #333333 0%,#222222 100%); + background:linear-gradient(top, #333333 0%,#222222 100%); + filter:progid:DXImageTransform.Microsoft.gradient( startColorstr='#333333', endColorstr='#222222',GradientType=0 ); } + +#cssmenu { + border-color:#000; } + +#cssmenu > ul > li > a { + border-right:1px solid #000; + color:#fff; } + +#cssmenu > ul > li > a:after { + border-color:#444; } + +#cssmenu > ul > li > a:hover { + background:#111; } diff --git a/MultiObfuscator/html/styles/menu.js b/MultiObfuscator/html/styles/menu.js new file mode 100644 index 0000000..1a5b01d --- /dev/null +++ b/MultiObfuscator/html/styles/menu.js @@ -0,0 +1,18 @@ +var menu = ''; + +document.write(menu); \ No newline at end of file diff --git a/MultiObfuscator/html/styles/obfuscation_sidebar.js b/MultiObfuscator/html/styles/obfuscation_sidebar.js new file mode 100644 index 0000000..542eec5 --- /dev/null +++ b/MultiObfuscator/html/styles/obfuscation_sidebar.js @@ -0,0 +1,63 @@ +var obfuscation_sidebar = '

 

'+ +'news.jpg
'+ +'
'+ +'

OpenPuff


'+ +'wikipedia.jpg
'+ +'
'+ +'

P2P & Torrent


'+ +'tntvillage.jpg
'+ +'
'+ +'

Steganography


'+ +'
'+ +'
'+ +'Wikipedia - StegoTools
'+ +'jjtc.com - StegoTools
'+ +'stegano.net - StegoTools
'+ +'
'+ +'
'+ +'
'+ +'

Stegananalysis


'+ +'
'+ +'
'+ +'Stego-Hacking
'+ +'Spy-hunter.com
'+ +'Identify & Crack
'+ +'
'+ +'
'+ +'
'+ +'

Obfuscation


'+ +'
'+ +'
'+ +'Cypherpunk manifesto
'+ +'Rubberhose Crypto-FS
'+ +'John Gilmore homepage
'+ +'Cryptorebel
'+ +'Defcon.org
'+ +'Hackers on planet earth
'+ +'Softproject 2003
'+ +'
'+ +'
'+ +'
'+ +'

OpenPuff Redist


'+ +'pendriveapps.jpg
'+ +'

 

'+ +'portableapps.jpg
'+ +'

 

'+ +'portablefreeware.jpg
'+ +'

 

'+ +'winpenpack.jpg
'+ +'
'+ +'

MultiObfuscator Redist


'+ +'portableapps.jpg
'+ +'

 

'+ +'portablefreeware.jpg
'+ +'
'+ +''+ +'
'+ +''+ +'Review embeddedsw.net on alexa.com'+ +'
'+ +''+ +'

 

'; + +document.write(obfuscation_sidebar); \ No newline at end of file diff --git a/MultiObfuscator/html/styles/style.css b/MultiObfuscator/html/styles/style.css new file mode 100644 index 0000000..621f3cb --- /dev/null +++ b/MultiObfuscator/html/styles/style.css @@ -0,0 +1,80 @@ +body { + margin:0px 0px 0px 0px; + padding:0px 0px 0px 0px; + font-family:"Times New Roman", normal; + font-weight:normal; + background:#FFFFFF; + background:url(./back.gif) repeat center top; } + +#main * { margin:0px 0px 0px 0px; padding:0px 0px 0px 0px; } +#main h1 { font-size:25px; font-weight:normal; } +#main h2 { font-size:20px; font-weight:normal; } +#main h3 { font-size:15px; font-weight:normal; } +#main h4 { font-size:10px; font-weight:normal; } +#main td { text-align:center; } +#main *.left { text-align:left; } +#main *.red { color:#FF0000; } +#main *.red * { color:#FF0000; } +#main *.green { color:#00FF00; } +#main *.green * { color:#00FF00; } +#main *.blue { color:#0000FF; } +#main *.blue * { color:#0000FF; } +#main *.white { color:#FFFFFF; } +#main *.white * { color:#FFFFFF; } +#main *.yellow { color:#FFFF00; } +#main *.yellow * { color:#FFFF00; } +#main *.grey { color:#C0C0C0; } +#main *.grey * { color:#C0C0C0; } +#main *.darkgrey { color:#808080; } +#main *.darkgrey * { color:#808080; } +#main *.green-white { color:#FFFFFF; background:#008000; } +#main *.green-white * { color:#FFFFFF; background:#008000; } +#main *.grey-white * { color:#FFFFFF; background:#808080; } +#main *.grey-white { color:#FFFFFF; background:#808080; } +#main a:hover { color:#FFFFFF; background:#0000FF; } +#main a:hover * { color:#FFFFFF; background:#0000FF; } + + #general { width:1000px; margin:0 auto; } + + #sidebar { float:right; width:220px; font-family:"Arial", normal; } + + #sidebar1 { width:216px; border: 2px solid #000040; background:#0000A0; color:#FFFFFF; } + #sidebar1 td { color:#FFFFFF; } + + #sidebar2 { width:216px; border: 2px solid #402810; background:#715125; color:#FFFFFF; } + #sidebar2 td { color:#FFFFFF; } + + #sidebar3 { width:216px; border: 2px solid #000040; background:#0000A0; color:#FFFF00; } + #sidebar3 td { color:#FFFF00; } + + #centerbar { width:776px; border-left:2px solid #000000; border-right:2px solid #000000; } + + #menu { height:200px; background:#000000; height:200px; background:url(./logo.gif) repeat left top; color:#FFFFFF; } + #menu td { color:#FFFFFF; } + + #text { background:#FFFFFF; color:#000000; } + #text td { color:#000000; } + + #text_margin { margin-left:10px; margin-right:10px; } + + #footer { height:100px; background:#000000; color:#FFFFFF; } + #footer td { color:#FFFFFF; } + +ul.slide1 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide1 li { list-style-type:none; position:absolute; } +ul.slide2 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide2 li { list-style-type:none; position:absolute; } +ul.slide3 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide3 li { list-style-type:none; position:absolute; } +ul.slide4 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide4 li { list-style-type:none; position:absolute; } +ul.slide5 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide5 li { list-style-type:none; position:absolute; } +ul.slide6 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide6 li { list-style-type:none; position:absolute; } +ul.slide7 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide7 li { list-style-type:none; position:absolute; } +ul.slide8 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide8 li { list-style-type:none; position:absolute; } +ul.slide9 { overflow:hidden; position:relative; width:125px; height:94px; } +.slide9 li { list-style-type:none; position:absolute; } \ No newline at end of file diff --git a/MultiObfuscator/html/styles/submenu.js b/MultiObfuscator/html/styles/submenu.js new file mode 100644 index 0000000..4e21567 --- /dev/null +++ b/MultiObfuscator/html/styles/submenu.js @@ -0,0 +1,10 @@ +var submenu = ''+ +''+ +''+ +''+ +'
embeddedsw_little.gif

EmbeddedSW.net

'+ +'

Security Technology - Cryptography & Obfuscation - Consulting
'+ +'SW&HW Development - Industrial Machinery - Retrofitting
'+ +'> Delivering Advanced & Reliable Innovation <

embeddedsw_logo_little.gif
'; + +document.write(submenu); \ No newline at end of file diff --git a/MultiObfuscator/libObfuscate.dll b/MultiObfuscator/libObfuscate.dll new file mode 100644 index 0000000..f3b1c33 Binary files /dev/null and b/MultiObfuscator/libObfuscate.dll differ diff --git a/MultiObfuscator/libObfuscate_license.txt b/MultiObfuscator/libObfuscate_license.txt new file mode 100644 index 0000000..b9d6c3e --- /dev/null +++ b/MultiObfuscator/libObfuscate_license.txt @@ -0,0 +1,38 @@ + +************************** +** ENGLISH - 04/03/2014 ** + +Project: libObfuscate v2.00 +Contact: "EmbeddedSW" +Company: EmbeddedSW.net + +THIS IS A FREE SOFTWARE + +This software is released under: + +* LGPL 3.0: http://www.gnu.org/licenses/lgpl.html + +You’re free to copy, distribute and make commercial use +of this software under the following conditions: + +* You have to cite the author (and copyright owner): EmbeddedSW.net +* You have to provide a link to the author’s Homepage: http://www.embeddedsw.net + +*************************** +** ITALIANO - 04/03/2014 ** + +Progetto: libObfuscate v2.00 +Contatto: "EmbeddedSW" +Compagnia: EmbeddedSw.net + +QUESTO È UN SOFTWARE LIBERO + +Questo software è rilasciato con licenza: + +* LGPL 3.0: http://www.gnu.org/licenses/lgpl.html + +Siete liberi di copiare, distribuire e fare uso +commerciale di questo software alle seguenti condizioni: + +* Dovete citare l’autore (e detentore del copyright): EmbeddedSW.net +* Dovete fornire un link alla Homepage dell’autore: http://www.embeddedsw.net diff --git a/S-Tools/GIFutil.dll b/S-Tools/GIFutil.dll new file mode 100644 index 0000000..1e09652 Binary files /dev/null and b/S-Tools/GIFutil.dll differ diff --git a/S-Tools/S-Tools.exe b/S-Tools/S-Tools.exe new file mode 100644 index 0000000..facee98 Binary files /dev/null and b/S-Tools/S-Tools.exe differ diff --git a/S-Tools/S-Tools.hlp b/S-Tools/S-Tools.hlp new file mode 100644 index 0000000..920fbe7 Binary files /dev/null and b/S-Tools/S-Tools.hlp differ diff --git a/S-Tools/S-Tools.zip b/S-Tools/S-Tools.zip new file mode 100644 index 0000000..00fc4b3 Binary files /dev/null and b/S-Tools/S-Tools.zip differ diff --git a/S-Tools/cryptlib.dll b/S-Tools/cryptlib.dll new file mode 100644 index 0000000..d4ff4e6 Binary files /dev/null and b/S-Tools/cryptlib.dll differ diff --git a/S-Tools/cygiconv-2.dll b/S-Tools/cygiconv-2.dll new file mode 100644 index 0000000..d3c145a Binary files /dev/null and b/S-Tools/cygiconv-2.dll differ diff --git a/S-Tools/cygintl-2.dll b/S-Tools/cygintl-2.dll new file mode 100644 index 0000000..aef3a8c Binary files /dev/null and b/S-Tools/cygintl-2.dll differ diff --git a/S-Tools/cygjpeg-62.dll b/S-Tools/cygjpeg-62.dll new file mode 100644 index 0000000..89f29ac Binary files /dev/null and b/S-Tools/cygjpeg-62.dll differ diff --git a/S-Tools/cygmcrypt-4.dll b/S-Tools/cygmcrypt-4.dll new file mode 100644 index 0000000..6947b54 Binary files /dev/null and b/S-Tools/cygmcrypt-4.dll differ diff --git a/S-Tools/cygmhash-2.dll b/S-Tools/cygmhash-2.dll new file mode 100644 index 0000000..f64f13b Binary files /dev/null and b/S-Tools/cygmhash-2.dll differ diff --git a/S-Tools/cygwin1.dll b/S-Tools/cygwin1.dll new file mode 100644 index 0000000..7e8dfa6 Binary files /dev/null and b/S-Tools/cygwin1.dll differ diff --git a/S-Tools/cygz.dll b/S-Tools/cygz.dll new file mode 100644 index 0000000..08386ea Binary files /dev/null and b/S-Tools/cygz.dll differ diff --git a/S-Tools/steghide.exe b/S-Tools/steghide.exe new file mode 100644 index 0000000..0dfff1d Binary files /dev/null and b/S-Tools/steghide.exe differ diff --git a/S-Tools/zlib.dll b/S-Tools/zlib.dll new file mode 100644 index 0000000..78feecd Binary files /dev/null and b/S-Tools/zlib.dll differ