71–80 of 504 posts
I know everyone wants to have a perfect justice system but we have to ALSO decide which direction we would like it to fail until that time comes (never). In essence cases like this are more about this question. When the system fails, which direction do we want it to fail in?
As expected on HN I am not surprised to see people defending one's right to privacy and encryption. However, what's the solution then ? If all the "bad guys" who distribute illegal material do so encrypted volumes and refuse to give up the decryption key then what do we do ? It's a different world now; the police can't just take a drill out and open the safe.
He shouldn't have to decrypt his hard drives, and I support his decisions. The problems with this are numerous. First of all no one has any duty to provide the police with evidence as a 5th amendment protection. It's not a "right" for the police at all to have. Imprisoning someone for failure to disregard their constitutional rights is absurd. They have no evidence to hold him period.
"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the resid…
Devils advocate, travel back to the 1950s. The government searches your home and takes a letter or other document that is clearly written in code. Can/would they jail you as in the current case until you decode it? And without even charging you with any other crime first?
At what point is "I used a one time pad" or "I don'remember" sufficient? I'm sure all of us have at least once (probably many) times forgotten a password, even for something relatively important.
The 'lock' interpretation also fails. It is obfuscation, they have executed their search warrant and they possess the obfuscated data. Can they force you to translate your documents written in some obscure language because they can find nobody else willing to do so for them?
Re: Orin Kerr - his argument fails as the government can execute their own search warrant to take documents they believe you to have - they need not rely upon you to voluntarily provide them at their request.
From what I understand our legal system was designed to fail "open". Or rather that we are willing to let a guilty person go free rather than an innocent person go to jail. I know everyone wants to have a perfect justice system but we have to ALSO decide which direction we would like it to fail until that time comes (never). In essence cases like this are more about this question. When the system fails, which directi…
Earlier quoted context omitted.
"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the resid…
Now extend that thought line to embedded brain chips. I don't like where it goes.
From what I understand our legal system was designed to fail "open". Or rather that we are willing to let a guilty person go free rather than an innocent person go to jail. I know everyone wants to have a perfect justice system but we have to ALSO decide which direction we would like it to fail until that time comes (never). In essence cases like this are more about this question. When the system fails, which directi…
[1]: https://en.wikipedia.org/wiki/Blackstone%27s_formulation
Earlier quoted context omitted.
"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the resid…
A few points - Devils advocate, travel back to the 1950s. The government searches your home and takes a letter or other document that is clearly written in code. Can/would they jail you as in the current case until you decode it? And without even charging you with any other crime first? At what point is "I used a one time pad" or "I don'remember" sufficient? I'm sure all of us have at least once (probably many) times…
If he were to hand them an elaborately constructed fake file system, who would they be to say those weren't the encrypted contents?
(For purposes of thought exercise, mooting arguments about headers / magic fingerprints / leaky metadata)
From what I understand our legal system was designed to fail "open". Or rather that we are willing to let a guilty person go free rather than an innocent person go to jail. I know everyone wants to have a perfect justice system but we have to ALSO decide which direction we would like it to fail until that time comes (never). In essence cases like this are more about this question. When the system fails, which directi…
Let me ask a question, is jail the appropriate sentence for a contempt of court charge? This is not the first time, reporters have been jailed for many months bc of contempt of court charges. Is this the appropriate sentence for the crime of not complying with a court order?
I don't know what the alternative would be... also, on the question of guilt vs. innocence. I can see myself agreeing with you that since the state has such a high burden of proof to meet, that the defense has a an implicit advantage, the issue is that the statistics are showing a far greater issue of a imbalance of justice being applied at different levels of society. There is no good reason that I can see where an innocent poor person goes to jail because of a bad defense, vs a guilty rich person who gets off because of a great defense.
Justice is supposed to be blind.
Earlier quoted context omitted.
"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the resid…
A few points - Devils advocate, travel back to the 1950s. The government searches your home and takes a letter or other document that is clearly written in code. Can/would they jail you as in the current case until you decode it? And without even charging you with any other crime first? At what point is "I used a one time pad" or "I don'remember" sufficient? I'm sure all of us have at least once (probably many) times…
"I forgot the password" Problem solved.
"I'm sorry sir, as personal encryption is classified as a munition there is a legal requirement that you must take proper care to ensure that you are able to respond to all lawful requests for decryption. This carries a penalty of 2-5 years in prison and a fine of $10,000."