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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

#51

Post by SCAQTony »

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…

"...LOCKED CONTAINERS - AN OVERVIEW: John P. Besselman Senior Legal Instructor

Law enforcement students often ask the question “can I search a locked container?” A better question to ask may be “when can I search a locked container?” The fact that a container is locked may not increase the possessor owner’s expectation of privacy but does limit the law enforcement officer’s access to the secured area. The ability to search a locked container will depend on the justification the law enforcement officer has for intruding into the area. The purpose of this article is to examine the different legal avenues a law enforcement officer can use to search locked containers. ..."

https://www.fletc.gov/sites/default/files/imported_files/tra...

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

#52

Post by eridius »

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…

The argument made in the article is that it's a "foregone conclusion" that there's child porn on the drives, so decrypting them isn't self-incriminating because they already know what's on the drive.

That said, personally I don't buy it. What if there's evidence of other illegal acts on the drive too, ones the police don't know about? Then decrypting the drive would definitely be incriminating because it would tell police about the other illegal stuff, stuff which fails the "foregone conclusion" test.

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

#53

Post by tyingq »

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?

You would need something more sophisticated that produced innocuous, but believable, data when given the distress key. Still criminal though.

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

#54

Post by RUG3Y »

NightMKoder wrote: post #38
ethbro wrote: post #31

Earlier quoted context omitted.

It is amazing that anything produced would be admissible. I don't see how this is different than having circumstantial evidence that someone is a murderer, so ordering them to lead you to where they buried the body.

I think they key is that the evidence is beyond circumstantial - they have concrete evidence that he uploaded files that were CP from that computer. It's a bit worrying why that isn't circumstantial (hacked computers aren't a thing?), but maybe the standard for issuing a subpoena is lower than guilt but higher than circumstantial. Sounds like the only right answer for your password is "I do not recall"

This might be a stupid thought but if they already have enough concrete evidence against the suspect, why do they require the contents of the drive?

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

#55

Post by hackuser »

bobbington wrote: post #36
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…

The supreme court is unelected, and are the supreme authority in this nation, above president and congress. the solution is simple - make the supreme court stand up to elections. America has had atrocious decisions from the supreme court. In Dred Scott, they said black people have no rights because they are black. In Roe v Wade, the abortion laws of 47 states were struck down by 5 oligarchs. No matter what you believ…

I don't see U.S. (or any) elected officials, including Congress and the White House, making better decisions. All have made atrocious decisions.

The argument in the parent is well-worn, but it fails serious consideration if it ignores the facts that the U.S. courts interpret laws made by the elected officials, that the judges are appointed by elected officials, that their unelected status is established by elected officials and a national referendum (i.e., the votes that established the Constitution), and the reasons for their unelected status.

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

#56

Post by hackuser »

Some discussion overlooks that this is a special case:

... the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already know there's child porn on the drives, so Rawls' constitutional rights aren't compromised.

The Philadelphia-based appeals court ruled:

Forensic examination also disclosed that Doe [Rawls] had downloaded thousands of files known by their "hash" values to be child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.

The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother showed him hundreds of pictures and videos of child pornography. All of this, according to the appeals court, meant that the lower court lawfully ordered Rawls to unlock the drives.

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

#57

Post by NightMKoder »

RUG3Y wrote: post #54
NightMKoder wrote: post #38

Earlier quoted context omitted.

I think they key is that the evidence is beyond circumstantial - they have concrete evidence that he uploaded files that were CP from that computer. It's a bit worrying why that isn't circumstantial (hacked computers aren't a thing?), but maybe the standard for issuing a subpoena is lower than guilt but higher than circumstantial. Sounds like the only right answer for your password is "I do not recall"

This might be a stupid thought but if they already have enough concrete evidence against the suspect, why do they require the contents of the drive?

My bet would be to up the sentence. Go from 2 counts of CP to 200 - 5 years in jail to life sentence.

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

#58

Post by downrightmike »

bobbington wrote: post #36
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…

The supreme court is unelected, and are the supreme authority in this nation, above president and congress. the solution is simple - make the supreme court stand up to elections. America has had atrocious decisions from the supreme court. In Dred Scott, they said black people have no rights because they are black. In Roe v Wade, the abortion laws of 47 states were struck down by 5 oligarchs. No matter what you believ…

Checks and balances

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

#59

Post by zer0t3ch »

ahelwer wrote: post #26

Here's a recording of the oral arguments for the US Court of Appeals, Third Circuit back in September: http://www2.ca3.uscourts.gov/oralargument/audio/15-3537USAv.... The gov's argument seems to be that because the defendant doesn't have to give the government the password but rather produce the decrypted hard drives, his actions aren't protected under the fifth. Analogy drawn with unlocking a safe. EFF counter-argum…

Can you be compelled to provide something that you don't have access to? Were anyone else in this situation, wouldn't it be plausible to simply claim you don't know that password?

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

#60

Post by Ripsaw »

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?

I think a better idea would be have it change the password/wipe data in the event that you do not log in within X amount of time (Think Lost). Keep your mouth shut for X time and there is nothing you can do to help them.

Speaking out my ass (IANAL) this is a deadman meant to protect against any attacker not necessarily law enforcement, this might be enough to keep you away from destruction of evidence charges.

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