Confidentiality

[Jonathan Buhacoff]

Proposed liberty:

Confidentiality is a liberty, not a right.

People may enter into confidentiality agreements with other people, for example employers or clients, and the freedom to enter into such agreements is protected by the right to consent.

However, if the confidential information is evidence of a crime, or evidence of a conspiracy to commit a crime, the confidentiality agreement is limited by the right to justice.

Under this proposal, the liberty of confidentiality is limited by the right to justice and right to fair trial. A mechanism is defined for compelling testimony and granting both criminal and civil immunity against any breach of confidentiality that arises, if the government believes the information is critical to a trial. People continue to be protected against a government that tries to force them to incriminate themselves. At the same time, there is a mechanism for making a bargain to grant immunity against any such crimes in exchange for the testimony, if the government believes it to be critical to a trial (but not their own trial).

Discussion of the proposal:

A judge may issue a warrant to compel a person to testify by ordering the person to testify, granting immunity from any criminal charges or civil suits for damages related to breaching a confidentiality agreement covering the information disclosed in testimony, and threatening a charge of violation of a right to justice (if testimony is required for the accuser) or right to fair trial (if testimony is required for the defendant) and arrest if the person does not comply with the order.

The grant of immunity covers only future charges that are based on the information disclosed in testimony, but explicitly does not cover the charge of perjury if it is later found that the testimony was false. If any investigation is already in progress into the witness for something related, the government should coordinate those efforts to avoid granting immunity for something that would have been discovered another way. If the witness was already convicted of other charges, the Executive Branch must approve a pardon of those charges if it is needed to negotiate the testimony and, if approved, the pardon offer must be included in the warrant.

To be valid, the warrant must include the order, the grant of immunity with the exception of perjury, a pardon offer if applicable, and the threat of charges and arrest if the person does not comply with the order.

In accordance with the proposed right to fair trial, the charges for violation of the right to justice or the violation of right to fair trial of someone else may need to be confirmed by a grand jury before being brought, and there is a chance the grand jury will determine there isn’t enough evidence to indicate the person had and intentionally withheld the relevant information. The threat of charges must be real — the judge must refer the person to the Investigative Branch — but is not a guarantee of prosecution.

If the witness believes their testimony would incriminate themselves, the witness may refuse to testify because doing so would violate their own right to fair trial (in the United States, this is called pleading the Fifth Amendment as the reason to withhold testimony). This refusal must be on a question-by-question basis. The witness cannot avoid all testimony because they may have relevant information that is not self-incriminating and the government, in protection of the right to justice or the right to fair trial, must have an opportunity to discover what information it can obtain.

If the witness has refused to provide some testimony because of their own right to fair trial, and the government believes this information to be extremely useful in the trial, the government may offer the witness immunity against charges that might arise from their testimony and an order that their testimony cannot be used against them in any future trial, with the exception of perjury if the testimony itself is found to be false.

If a potential witness continues to refuse to testify to protect a confidentiality for someone else or to avoid incriminating themselves after the judge has issued the warrant, the government has probable cause to arrest the potential witness and begin an investigation for a violation of right to justice (if refusing to testify for the accuser) or violation of right to fair trial (if refusing to testify for the defendant), and possibly other crimes that may be relevant.

A person’s right to avoid incriminating themselves in testimony must be protected, but it does not mean the people must give up the fight for justice. If an investigation is completed and there is insufficient evidence to charge the potential witness with any crimes, they must be released. However, while the investigation is ongoing, the Executive Branch must confer with the Investigative Branch to decide if there is a risk that the person may attempt to subvert the investigation if they are free or not, to decide if the person must stay under arrest during the investigation. The duration of arrest must be as brief as possible, just long enough for the Investigative Branch to gather whatever evidence it needs and either charge the person or drop the matter. If the person is charged, the government must then decide if the person must remain under arrest pending trial or not.

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