Wednesday, August 31, 2011

Contemplations on Mandatory Key Disclosure Law: II


When does self- incrimination right kick in: At trial or at  investigation?
The position in UK apparently is that it kicks in at the time  of trial. So this means police has right to collect all evidence possible- only at the time of trial it will be decided if it is incriminating or not- and hence whether it is self- incriminating. If self-incriminating it will be excluded from evidence. 

But position in Indian law is completely different- as seen in Selvi decision. Self- incrimination right extends back to the  investigation stage.
"100. ....It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. ...Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness' and not to `appear as a witness': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. "

Separating the testimonial and the non-testimonial
Sample this argument. I have some documents which have content that would incriminate me for an offence. Now I'm being asked to produce the document. The act of the production of the document in itself is a testimony because by producing it I'm communicating that I have control over the document/ the document is in my possession. But the contents of the documents also communicate my involvement in a particular offense, my guilt. Now the argument goes that the contents of the document do not really constitute testimony and hence it should not be protected under the right against self incrimination. This is because the contents of the document have not been recorded by my dependence on police investigation.
On the other hand it is argued that these two processes cannot really be divorced from each other as one leads to another. So even if the act of production attracts self-incrimination provisions and the document itself does not- by being linked with the act of production, the document becomes tainted and attracts the self-incrimination provision. 

Foregone conclusion
Memory v. something physical
Idea is that accused cannot be asked to produce something which exists in his memory, and does not have a physical presence. Even though password has a real physical link- its knowledge exists only in the memory. It is this knowledge in memory which is to be protected under the self-incrimination privilege.

When it works
Foregone conclusion applies only when the prosecution is aware of the existence and location of a particular thing with the accused. When it is already known that the accused is in possession of a certain thing, then no self- incrimination will happen. But what when police randomly ask the accused to open safes and shelves and all?

....The police may compel the accused to open stuff under law- but they cannot compel the production of something.....(???)

Q. If police have a search warrant for accused's house, is it also a warrant to search their safes, locked areas etc.? Or is a separate search warrant for that needed? note however that under s. 69, IT Act, the need for a warrant is not there.

Things--
1. Analogy of a password with a physical key
If you do not give the physical key, adverse inference may be drawn against you- does 7 years in jail as prescribed under s. 69 of IT Act then be illegal?- because there is a difference between adverse inference and certain punishment.

2. Analogy of password with a testimony
Since password is a knowledge stored in mind/ memory, it cannot be asked for compulsorily. Since contents of laptop etc. can be revealed only via the password which is protected info. n which acts as a link to reach the docs. compulsion cannot be effected to get the evidence.
Tweet This

Saturday, August 27, 2011

Contemplations on Mandatory Key Disclosure Law: I

One of the issues raised in mandatory key disclosure controversy is about the nature of a key or password. I intend to discuss the same here.

Existence of password
It is clear that the knowledge of the password exists in the mind. But the question is whether the password in itself also exists only in the mind or has some existence in reality. This can probably be tackled by asking if the password ceases to exist when the person who knows the password, or in whose mind the password exists dies, ie. when his mind is destroyed. From Descartes point of view, probably yes. Because the destruction of the knowledge of the password obviously happens when a person dies. Once the knowledge of the password is gone, the password ceases to exist until someone else comes along and "discovers" the password. 

But can this analogy be applied here? Because people would still know there exists something which can cause the computer system to unlock- they just do not know what it is. In other words, is the password a perception? I would like to compare it with another analogy here. Imagine the situation before Ptolemy said that earth revolved around the sun. Everyone was of the opinion that the Sun revolved around the Earth. So should we be saying that the people were mistaken and "reality" was different- which is that the Earth revolves
around the Sun? Can it be said that there is a reality existing outside of our minds and perceptions? Because on the other hand, it can be said that Ptolemy "perceived" something else- this perception including certain observations- which won over the previous perceptions. So this new perception became the reality. And it is well possible that future observations can change this perception propounded by Ptolemy too- maybe the sun
and the earth revolve around each other. Physics after all does understand the importance of point of reference. Now can this analogy be used to draw parallels with existence of a password?

Maybe not really, because in our example- everyone, which means the accused and the police perceive that the password can be used to unlock the system-- no one really has a different perception here. Password would still be valid if anyone else other than the accused enters it, even after the accused's death. Even if he does it without realisation of what it is. This is because- everyone- the accused, humankind and the computer-system made by human kind operate under the same assumption- that the right password once entered will unlock the computer and give access to its contents. The problem for the police here really lies in the too large number of possibilities to find out what the password really is. And not its existance. Thus in the human reality, the password exists not just in the mind of the accused but in "reality". It is only the knowledge of what password is which exists with the accused.

Revealing password as testimony v. Password as a link to reaching incriminating material
One argument goes that revelation of password would be a testimony sure because it would be revealing knowledge within mind. Issue lies is that the defence then argues that speaking out the password would be a testimony but entering the password in the computer would not, because in entering the password the accused would not be revealing the contents of "his mind" which would be the case when he simply enters the password rather than divulging it. But the counter-argument goes that even by simply entering the password the accused in fact does reveal contents of his mind, e.g. the knowledge of the fact that he has control over any evidence found on the computer, which was earlier unknown to/unverified by law enforcement, and was only within accused's knowledge.
Now notice that law grants privilege of self incrimination to even mere knowledge about existence of a thing which exists in mind- and not just to things which completely exist in the mind, or which can be modified by mental powers. For example, self incrimination privilege is granted to the knowledge of the accused of the fact that he was carrying a knife on the night of 14th March 2011. This fact is something which would have been accepted as reality by any human who saw him on that night with a knife. Accused cannot change this fact of him carrying his knife with the power of his mind. Thus for all human purposes this fact is "reality". Yet the accused's knowledge of this fact is privileged. In the password situation, two things may happen.
a. Accused may say he has control over the computer but refuse to disclose the password pleading right against self incrimination.
b. Accused may say he has no control over the computer, so he is unable to disclose the password.

Let's take situation b. first. Accused has set the password at some prior time. Knowledge of password is only within his mind, though it sure exists in reality too. He sure cannot change the password by using his mental powers. Yet by drawing analogy with the knife carrying situation, accused can keep silent about his knowledge of the fact that he had set the password at a prior time, or that he knows the password at any level. In this case even forcing him to enter the password will demonstrate his control over the password or the computer under right against self-incrimination.

Situation a.  now. Accused has set the password at some prior time. Knowledge of password is only within his mind, though it sure exists in reality too. He sure cannot change the password by using his mental powers. Yet by drawing analogy with the knife carrying situation, accused can keep silent about his knowledge of what the password is and hence disclosing it under right against self-incrimination.

Hmm...looks like arguments for situation a. and b. are more or less the same. 

Tweet This

Friday, August 19, 2011

Implications of Kelsen's conceptualism

I've been reading Kelsen's Pure theory of law, and have been finding his conceptualist methodology fascinating. The entire idea of construction of concepts before delving into legal discourse seems to be a fresh change from the empiricism whereby legal concepts as such are derived from the society.

Kelsen's calls them "concepts", but to my mind, it is better to call them "assumptions" because Kelsen does not propose their absoluteness. Rather, he actively denies the same. This is totally in contrast to empiricism, where by virtue of being derived from the social experience, the concepts, in essence become facts. Absolute, and the single truth. The latter is limiting in many ways because, within its ethics, it prevents multiple approaches to the same problem.

Though again there is sense in distinguishing between what Kelsen understood as the ethics and scope of a discipline. (ethics is just a term I'm using here- nothing Kelsenian about it as far as i know.) Ethics denotes what would be allowed in the vision of a particular discipline, while scope defines the way a particular discipline would proceed based upon its concepts, or assumptions. It is something like saying, "I think it will rain today, so I will take an umbrella with me outside. I know you think it will not rain, so you are not taking your umbrella. I'm not saying that your notion about no rain is wrong, but I would rather not proceed upon it." Here the concept for me is that it will rain and I premise my theory about taking an umbrella upon this concept. The concept for you is that it won't rain and you premise your theory about not taking an umbrella upon that. Neither of us can know for sure if it will actually rain, so I cannot outrightly refute your concept. Consequently, rather than being absolute, my concept will remain only an assumption. On the other hand, if I were an empiricist, that it would rain would be a fact I'm absolutely certain about.

In this regard, I think I would be more inclined towards the conceptualist methodology than the empiricist one, simply because facts are not truth. Which means that facts change with changing perspectives- the situation is somewhat like that of Schrodinger's Cat in a box which can never be opened, and hence the truth cannot be determined. A more illuminating example would be perhaps be to think of the idea of life after death. For those who believe in it, it is fact. For those who do not, it is not. And absolutely no one can know the truth. Similarly, when a concept is made to root in a fact or empirical observation, it does two things: a. refutes the viability of concepts rooted in different facts. b. ignores that the truth about the subject lies in something more than a fact. Which is where, in my view, conceptualism prevails.

Prima facie, Kelsen's approach might reek of philosophical nihilism. But for Kelsen, it didn't mean that this whole exercise of formulating theories was a dead end, as the truth of any could not be determined. Kelsen, instead argued that each of these various assumptions, or concepts in his words, were valuable in context of their own discipline, and only when all of these discourses are taken together, that a real picture of the concerned subject matter begins to emerge. This way philosphical absurdism rather than nihilism would more be Kelsen's line of thought.


What is important is that Kelsen uses exactly this argument to establish law as an independent discipline, clear of political, social and economic influences. In doing so, Kelsen is not unaware that such influences in deed have a significant effect upon shaping the law. But for Kelsen legal discourse is a matter of academic convinience, and not truth. Therefore legal concepts must be totally divorced from the "non-legal" influences, thus carving the legal discipline as distinct. This, in no way means that legal concepts are the only way to understand law, or even that law can be fully understood merely by the use of legal concepts. This is where Kelsen changes law from being a mere tool for the exercise of political power as envisioned by classical postivism.

I would like to compare this idea to my understanding of an anarchist conception of law, whereby law is not afforded the status of being a distinct discipline. This is basically because for the anarchist, law acts as something external to an individual. Which means that in many ways, law would sanction violence and coercion upon individuals due to some expectations and obligations under law. I was very intrigued to find that Kelsen had this point in mind too. He says in context of politics, "If the masks are stripped away from actors on the political stage and we no longer see the impersonal state 'condemning and making war', what is revealed is the reality of 'men putting coercion on other men.' (1973:67)" [Quoted from Cotterell 2003:36]

Interestingly, Cotterell sees this as Kelsen's committment to democracy, and uses it to contrast Kelsen against the Austinian illimitable sovereign. In my view, however, it is more. It is a warning against using "supra- individual forms" (a term used by Cotterell) to view human actions, without taking into account that all these supra-individual forms are built upon a certain set of concepts which are essentially assumptions and not absolute truth. Because if this happens, the danger that violence will be justified along with curtailment of freedom, increases infinitely. Consider the sovereign issuing a command to put a person to death. Politically, the action of putting that person to death would thus be justified. But legally, if that person has not committed any offence which warrants such punishment, this action cannot be justified. Thus violence which was being justified on account of politics, in this case would not be justified on account of law. There is an obvious distinction between Austinian and Kelsenian conception of law to be shown here. But I think Kelsen's point here is much larger: that justifying any action from the point of view of only a single discipline is a folly. This is more about than just separating law and politics.

I actually find here some parallels with the anarchist conception of how to treat or view human actions. Anarchists condemn law as a separate discipline only because they assume that a single discipline would be used to understand and put into perspective, human actions. This in turn, would enforce violence and curb human freedom, because human actions and experiences are too rich to be understood purely in a legal perspective. Kelsen in fact, argues the same. But then he says that a single discipline should not be used to understand any human action, thus solving anarchism's problem with recognition of law as a discipline. Though of course, how this is to be achieved, still remains obscure.

Tweet This