No, I don’t need an answer fast. This is strictly hypothetical. I actually have a lawyer and if this were non-hypothetical, I would (a) talk to him about it and (b) never mention it on the boards.
Let’s say I keep a diary, which in fact I do, and have more than 30 years. Now, since the travails of Bob Packwood back in the 90s, it’s been my impression that such musings are not necessarily private. But that doesn’t really matter to me; I don’t write much about work or concrete events in my life in the pages of the diary. On the rare occasions that I do, I sometimes write in code; for instance, years back a friend of mine confided that she was cheating on her husband. For various reasons that are none of your business this disturbed me and I mused about it in the diary. But since my friend’s name was “Joan,” I always called her Lily in the diary; and rather than mention the affair as uch, I always wrote the Coopersville Incident.
Anyway, here’s my questions:
Am I correct to think that the diary could be subpoenaed if I were accused of a crime?
Am I correct that the diary could be subpoenaed in a criminal case in which I was not the defendant?
How about a civil action?
If the diary could be subpoenaed, could I be required to explain the code phrases? If not, why not?
I don’t know all the legal implications of a diary, but I do know that the President of the United States is strongly advised never to keep a diary because it can be subpoenaed. I suspect that if his can be subpoenaed, yours can too.
I graduated from the John Grisham Law Academy, so I know what I’m talking about… I suspect that your diary could be subpoenaed if you were accused of a crime, however, they could not force you to give up any “code” because you have the right against self incrimination (5th). Your diary could be subpoenaed for civil or other criminal matters… maybe, but I don’t think it would be allowed, because it’s basically hearsay (at least in the context of the adultery example). If there was an incidence where your diary was admissible and you had not committed a crime… you don’t have the protection against self incrimination so you may have to reveal your code or be in contempt of court.
I don’t understand how you could consider it protected. No more than anything else you write or whats on your hard drive. There would need to be probable cause to get a search warrant. And you could be compelled to testify about it unless it incriminates you. And you must tell the truth or be charged with perjury.
Of course unidentified encrypted documents on a server in a foreign country that you have no written or electronic records about would be difficult to subpoena. Can you rememeber a four thousand bit encryption key, and a 256 character url?
Sounds plausible to me, but over at the TrueCrypt site they are pretty sure that you CAN be compelled to give up your password for encrypted files, hence all the effort at stealth encryption.