If he were being forced to divulge the physical coordinates of a hidden thumb drive, it's highly likely he'd get Fifth Amendment protection.
But being forced to divulge the virtual coordinates of his hidden data is somehow different...
Man jailed 16 months, and counting, for refusing to decrypt hard drives
131–140 of 504 posts
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#132Earlier quoted context omitted.
"bad guys" who distribute illegal material Honestly, I fail to see how or why this should be a problem, considering that no actual injuries are inflicted in the storage or possession of ones and zeroes. Sure, that's an obtuse abstraction, but honestly, the buck stops there. At the end of the day, they have a circuit encoded in a given state. Magnetic media that can be arbitrarily degaussed. It's not real. Stop prosec…
If it is all 1s and 0s, I am curious how you feel about the NSA having a good deal of your personal information stored on their drives?
Do we get to choose to live in a world where that isn't the case? No? Hey that sounds like a good reason to have fewer laws we can be parallel-constructed into violating.
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#133Earlier quoted context omitted.
It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation t…
Except it seems there is good case law to show that in fact suspected cannot be forced to open a combination lock, as it falls under fifth amendment protection. They can, however, be compelled to provide a key if it is a key-based lock. This applies similarly to biometric-based locks. It's hard to believe that an encryption key is any different than a combination lock in this "encryption is like a safe" metaphor. Rel…
Your first citation has nothing to do with disclosing combinations. It's a question of whether documents that would be protected by the Fifth Amendment if they were in the clients' possession are likewise protected when they've been transferred to the clients' attorney's possession. SCOTUS ruled that the documents would've been ineligible for Fifth Amendment protection because they are evidentiary, not testimonial, so it didn't matter whether or not the attorneys or the clients physically possessed them.
Quoth Justice White from that decision:
> Within the limits imposed by the language of the Fifth Amendment, which we
> necessarily observe, the privilege truly serves privacy interests; but the Court has
> never on any ground, personal privacy included, applied the Fifth Amendment to
> prevent the otherwise proper acquisition or use of evidence which, in the Court's
> view, did not involve compelled testimonial self-incrimination of some sort.
The third case appears closer to the mark in that it discusses the way in which produced documentation can be employed to incriminate a witness who produced it, but that case specifically seems to involve the interaction of the statute under which the accused was granted immunity. It also deals with a witness who produced documentation pursuant to a subpoena and a grant of immunity provided in connection with that, not an accused who is the subject of the investigation.
I'm not sure where you pulled these citations, but none of them appear to have any relevance to the assertions you've made.
Some research seems to indicate that the question of whether a defendant must supply the combination to a safe has never been directly considered by the Supreme Court, though it's been mentioned, tangentially, as a distinct thing from using a key to "open a strongbox", with the implication that disclosing a combination may be protected but opening a safe with a key wouldn't be. This analogy is employed in one place in the decision issued in the third case, but it's only for illustrative effect.
I'm sure that in the not-too-distant future we'll see a case about this make it up to the Supreme Court (possibly even this one). My expectation is that SCOTUS will rule that it is proper to compel the defendant to decrypt the disks.
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#134He 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…
I have a technical question about this comparison. In the locked door example, is the warrant an allowance for police to enter the area without the owner's permission, or is the warrant an order for the owner to give permission and assist?
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#135Earlier quoted context omitted.
> No one can be sure you decrypted everything. What exactly do you think they're going to do if they don't believe you've decrypted everything?
No idea. They don't know anymore if ANYONE decrypted everything. They would do whatever they do right now when they don't know things - about anyone.
So, you don't think they would, believing there is another layer of encrypted data that you could decrypt, lock you up until you "comply"?
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#136This is probably a lot less black and white then it might seem at first. If there is sufficient evidence, one can obtain a search warrant and this forces you to possibly act against your own best interest by allowing the police to search your home. On the other hand you can usually not be forced to testify against yourself. So this becomes the question where decrypting a hard drive lies on this spectrum. Is it more l…
> one can obtain a search warrant and this forces you to possibly act against your own best interest by allowing the police to search your home. In Germany you never have to actively help the police even if they come with a warrant. They can't even compel you to open the door of the house or a physical safe. They will of course come in anyway and send you the bill for the locksmith, but it's your perfect right to jus…
You made me realize that I was probably wrong here, i.e. you do not have to allow the the police to enter your home acting against your own best interest, and as far as I can tell this also applies to the USA.
This raises the question if there is any other situation where you have to act against your own best interest, otherwise my initial argument falls apart and it seems unreasonable to try to force someone to decrypt his hard drive.
Another question is, how far can I push the search warrant scenario? Am I allowed to use force against the police to prevent them from entering in the same way I may use force against burglars? Am I allowed to shoot at the police? Not that it would buy you much, it is pretty unlikely that you can hide at home forever, but from a purely theoretical standpoint?
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#137Why post when you haven't read the article?
Because he cares more about the general case and the discussion here, than about the particular article?
The context of the discussion is the topic of the article, whether or not he's interested in the general discussion, he needs to be willing to read a fucking article.
Or are we to believe this person is somehow well informed when they can't be bothered to read a short, simple article?
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#138This is probably a lot less black and white then it might seem at first. If there is sufficient evidence, one can obtain a search warrant and this forces you to possibly act against your own best interest by allowing the police to search your home. On the other hand you can usually not be forced to testify against yourself. So this becomes the question where decrypting a hard drive lies on this spectrum. Is it more l…
A search warrant does not really require the target to 'allow' the police to search; the target could choose not to cooperate and police would break into the home, for example. As far as I can see, it is lawful to the target to do this. Similarly, in Rawls's case, the government is free to attempt to bruteforce the passphrase without Rawls's cooperation.
The comments here made me realize that I was probably wrong about the required cooperation in case the police shows up with a search warrant.
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#139He 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.
But I bet something led police to the hard drive in question in the first place. I wonder what "that" something was. In the U.S. you can be arrested and held for Reasonable Suspicion (or Probable Cause)
Article mentions Freenet traffic detected at his computer. AFAIR Freenet is like BitTorrent, except nobody knows what you are downloading.
Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives
#140Earlier quoted context omitted.
Actions such as crimes are traditionally illegal. Information about actions such as crime is traditionally legal. Should we ban all recordings of any crime under moralist or flimsy arguments such as that they encourage others to commit the crimes recorded? Not only would this expand the scope of "criminal" to include people who have not committed such crimes (and may never do so), but I think it's a futile and petula…
Images and videos of child sexual abuse aren't just "information about [...] crime"; their creation, possession, and distribution are all actions which themselves qualify as criminal under modern American jurisprudence. This is generally justified on the grounds of ongoing harm to the victims, which, while not unreasonable, I think might be a weaker argument than that distribution in particular may make and expand a…
>these are all currently crimes in their own right, so they fall under your first category, rather than your second, so I'm not quite clear what sort of point you're making here.
I was answering the question below:
>Your proposal ignores it - legalizes its distribution, in fact. Why?
If, in response to my answer, you conclude that committing a crime is an action tantamount to sharing, viewing, or possessing information about it, I disagree, and I think your outlook is frighteningly authoritarian. "Action" was a poor word choice. "Actions which entail direct harm", such as raping a child, should be illegal, I should've said. "Actions which entail indirect harm", such as possessing, sharing, or viewing data, should not be, in my opinion.
That doesn't matter if you're ignoring actions' directness and level of harm altogether and arguing that, since a judicial body classifies an action as a crime, it is a crime, and so I should agree that it should be a crime. But, in that case, I also disagree, and I think you're being a poor advocate for orthodoxy.
>ongoing harm to the victims, which, while not unreasonable, I think might be a weaker argument than that distribution in particular may make and expand a market even when not done for money
Here, I think you're doing it more justice. Incidentally, though, I'm the other way around. The "harm to victims" angle is much more salient than the "increasing demand" one, but both are pretty spurious to me, and certainly seem like underwhelming reasons to imprison and permanently cripple the lives of people whose only actions consisted of manipulating bits in storage media to the direct harm of no one.