Man jailed indefinitely for refusing to decrypt hard drives loses appeal • Hacker News Board

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

#71

Post by petermcnister25 » Tue, Mar 21, 2017, 4:11 AM UTC

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.

When the original case surfaced I was wondering the same. If they had (real) evidence that your encrypted hard drives have CP, then I'd be okay putting you in jail (;

However, if that was the case then they wouldn't need to decrypt the drives, so this whole case smells quite a bit.

AFAIK there is a similar situation in the airport immigration; if you are an US citizen and don't want to provide a password for an encrypted device, they'll make you have a bad time, then throw the device and then let you in. Same for foreigners except with a flight back instead of letting them in. The bad time they give you basically depends on the immigration officer.

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

#72

Post by mjolk » Tue, Mar 21, 2017, 4:11 AM UTC

alphabettsy wrote: post #11

Almost like they chose this particular topic to set a precedent...

Or, this is a case in which a defendant had a non-foreign-government reason to accept whatever consequences come from not cooperating (thus not having political machinations at work) and it's a case with real human harm that makes it worth pursuing for the prosecutor.

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

#73

Post by imh » Tue, Mar 21, 2017, 4:12 AM UTC

hackuser wrote: post #56

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…

I've never understood the foregone conclusion doctrine. If it's a foregone conclusion, the search should be unnecessary, not a special privilege.

IIRC, he also stated that he has forgotten his password (and after 18 months, it has become believable).

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

#74

Post by MaulingMonkey » Tue, Mar 21, 2017, 4:13 AM UTC

striking wrote: post #43

Overtonwindow wrote: post #39

Earlier quoted context omitted.

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.

An interesting talk on disk antiforensics: https://www.youtube.com/watch?v=qZtkANvDxZA

Of course, having watched this, the feds might look for such tricks...

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

#75

Post by naasking » Tue, Mar 21, 2017, 4:15 AM UTC

NightMKoder wrote: post #57

RUG3Y wrote: post #54

Earlier quoted context omitted.

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.

But then that seems to undermine the whole argument, because they actually are requiring the suspect to incriminate himself.

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

#76

Post by imh » Tue, Mar 21, 2017, 4:17 AM UTC

NightMKoder wrote: post #57

RUG3Y wrote: post #54

Earlier quoted context omitted.

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.

Doesn't that bring the question back to the 5th amendment on the other 198 counts?

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

#77

Post by naasking » Tue, Mar 21, 2017, 4:18 AM UTC

danso wrote: post #14

mgamache wrote: post #2

So if I forget my password, I can be in jail forever?

That would be an interesting case but that's not what seems to be argued here. The state is arguing that they have enough evidence that "the presence of child porn on his drives was a 'foregone conclusion.'". It's likely the defendant didn't use forgetting-the-password as a defense because it was obvious via IP traffic and witness testimony that he had regularly and recently used his computer. The ruling here seems f…

> IANAL, but it seems akin to arguing that you have a Fifth Amendment right not to give up a DNA sample.

It's not equivalent. The Supreme Court has mentioned in past decisions that combo locks may well count as products of the mind, and so fall under 5th protection, where key safes and compelled DNA gathering do not. See: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s...

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

#78

Post by rayiner » Tue, Mar 21, 2017, 4:19 AM UTC

_xhok wrote: post #64

hackuser wrote: post #56

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…

The critical question is, why haven't they charged him? It is disingenuous of them to bring up the evidence they currently have essentially in an attempt to demonize him. Their evidence is sufficient or it isn't; if it is they should charge him; if not they're demanding self-incrimination.

You need to distinguish between requiring the defendant to turn over incriminating evidence (which the 5th amendment does not protect), and requiring the defendant to make incriminating statements (i.e. to provide incriminating testimony).

Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence.

The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence.

Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists.

[1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."

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

#79

Post by Steko » Tue, Mar 21, 2017, 4:20 AM UTC

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…

If 47 states still wanted abortion to be illegal, they could certainly have made a constitutional amendment through their elected representatives in Congress and state legislatures. The fact is the restrictions were quickly eroding at the time of Roe and 20 states had already passed laws making specific exceptions including 3 where it was legal.

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

#80

Post by naasking » Tue, Mar 21, 2017, 4:20 AM UTC

striking wrote: post #43

Overtonwindow wrote: post #39

Earlier quoted context omitted.

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.

I expect cloning to already be standard forensic procedure, but perhaps I'm wrong. If not, it should be.