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Man jailed indefinitely for refusing to decrypt hard drives loses appeal

arstechnica.com

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Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#41

Post by paulddraper »

smsm42 wrote: post #16

This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking "well, those Founders were just idiots for putting such an amendment in, clearly it'd be much easier to prosecute people if we could compel them to witness against themselves, so why don't we just igno…

It's not as black and white as you make it.

If there is a warrant to search my property, I am obligated to assist if required. E.g. open the gun safe. (Hey, speaking of guns...You know what other antedquated amendment from the Founding Fathers would be really convenient to ignore...)

Now, AFAIK, no one has tested whether that still hold true of a combination safe, where the access substaintivly requires information from the accused.

And a combination safe is very similar to an encrypted drive.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#42

Post by goodplay »

Sitting directly in front of me are two moderately large encrypted hard drives the passwords for which I forgot. If I get a subpoena to produce their contents, I will potentially remain in jail of the rest of my life for the crime of being forgetful.

That judge's behavior and (the laws that enables it) is sickening. You either have enough evidence to convict a person, or you don't.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#43

Post by striking »

Overtonwindow wrote: post #39
striking wrote: post #37

Earlier quoted context omitted.

Here's mine: destruction of evidence is a crime. Probably not the best idea. Hiding the partition or otherwise making the encrypted data hidden is probably your only bet.

Which would you rather go down for: destruction of evidence, or what's in your hard drive? I'm asking a technical question, not a legal one. There are many instances where this would be preferable than giving up the data.

If someone released such a tool, the feds would make sure to clone your hard drive before supplying the password to it, or write a patched version of the tool that reads it to remove the disk wiping call.

And then you'd be in really hot water.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#44

Post by zkms »

Overtonwindow wrote: post #35

This raises an interesting idea: why not create two passwords for encrypted drives, one password decrypt the drive, another password completely wipes the drive. This way if someone is forced to give a password to decrypt something, that password renders the data moot. Thoughts?

An actual forensics investigator will not work on a single copy of any data -- they'll make a bit-for-bit image of the hard drive in question and just work with an image.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#45

Post by cnnjhvyhvc »

This reminds me that I need to wipe the drive I was using to test Bitlocker, as I typed in a random password and have long since forgotten it. I can only imagine the Kafkaesque horror of being imprisoned until I decrypt it, spending decades trying to brute force it.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#46

Post by trav4225 »

paulddraper wrote: post #41
smsm42 wrote: post #16

This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking "well, those Founders were just idiots for putting such an amendment in, clearly it'd be much easier to prosecute people if we could compel them to witness against themselves, so why don't we just igno…

It's not as black and white as you make it. If there is a warrant to search my property, I am obligated to assist if required. E.g. open the gun safe. (Hey, speaking of guns...You know what other antedquated amendment from the Founding Fathers would be really convenient to ignore...) Now, AFAIK, no one has tested whether that still hold true of a combination safe, where the access substaintivly requires information f…

Not quite, IMO -- combination safes can be feasibly opened without the combination.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#47

Post by Bamberg »

goodplay wrote: post #42

Sitting directly in front of me are two moderately large encrypted hard drives the passwords for which I forgot. If I get a subpoena to produce their contents, I will potentially remain in jail of the rest of my life for the crime of being forgetful. That judge's behavior and (the laws that enables it) is sickening. You either have enough evidence to convict a person, or you don't.

mmm this poses an interesting question: what if a defendant/suspect cannot remember the password? Does anyone know if there is any comparable precedent regarding forgetting things?

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#48

Post by isaacremuant »

Bamberg wrote: post #47
goodplay wrote: post #42

Sitting directly in front of me are two moderately large encrypted hard drives the passwords for which I forgot. If I get a subpoena to produce their contents, I will potentially remain in jail of the rest of my life for the crime of being forgetful. That judge's behavior and (the laws that enables it) is sickening. You either have enough evidence to convict a person, or you don't.

mmm this poses an interesting question: what if a defendant/suspect cannot remember the password? Does anyone know if there is any comparable precedent regarding forgetting things?

If you're a politician, "I don't recall" seems to work wonders for depositions.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#49

Post by paulddraper »

trav4225 wrote: post #46
paulddraper wrote: post #41

Earlier quoted context omitted.

It's not as black and white as you make it. If there is a warrant to search my property, I am obligated to assist if required. E.g. open the gun safe. (Hey, speaking of guns...You know what other antedquated amendment from the Founding Fathers would be really convenient to ignore...) Now, AFAIK, no one has tested whether that still hold true of a combination safe, where the access substaintivly requires information f…

Not quite, IMO -- combination safes can be feasibly opened without the combination.

Encrypted drives can be opened without the password. Difficulty varies of course, but it can be done (e.g. iPhone).

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#50

Post by 0xcde4c3db »

paulddraper wrote: post #41
smsm42 wrote: post #16

This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking "well, those Founders were just idiots for putting such an amendment in, clearly it'd be much easier to prosecute people if we could compel them to witness against themselves, so why don't we just igno…

It's not as black and white as you make it. If there is a warrant to search my property, I am obligated to assist if required. E.g. open the gun safe. (Hey, speaking of guns...You know what other antedquated amendment from the Founding Fathers would be really convenient to ignore...) Now, AFAIK, no one has tested whether that still hold true of a combination safe, where the access substaintivly requires information f…

If I'm reading things correctly (IANAL, so it's very possible that I am not), it seems like there's not a lot of consensus. Some rulings say that the court can't compel you to disclose or use a password. Others say that per the Fifth Amendment it can't compel you to reveal "the contents of your mind", but can compel you to produce the protected items without disclosing the password, as those are covered by the Fourth Amendment rather than the Fifth. Yet others say that this is all bullshit and a password is merely a component of a mechanism, legally no more privileged than a physical key used to lock a file cabinet or storage room.
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