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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

#91

Post by ouid »

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…

it's not similar at all. No one can prove that an encrypted drive is an encrypted drive and not a random number. whereas a safe is plainly a safe.

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

#92

Post by pinum »

rayiner wrote: post #90
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.

The Court's opinion explicitly addresses that (at 18-19). It first recognizes that impossibility of compliance is a defense to a contempt charge. But it then explains why the trial judge reasonably did not buy that argument: > At the contempt hearing, the Government presented several witnesses to support its prima facie case of contempt. Doe’s sister testified to the fact that, while in her presence, Doe accessed chi…

18 months later, though, it is completely plausible that he really has forgot. I don't think I would remember a complex password that I haven't used for 18 months. Hell, I sometimes have to reset simple passwords that I created last month. If you don't use knowledge, you forget it.

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

#93

Post by [deleted] »

rayiner wrote: post #78
_xhok wrote: post #64

Earlier quoted context omitted.

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 y…

[deleted]

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

#94

Post by Buge »

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 existence of the child porn might be a forgone conclusion, but there is a lot of other stuff on the hard drive. And that other stuff is not a forgone conclusion. So by decrypting the hard drive, he would be giving them information that is not a forgone conclusion.

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

#95

Post by [deleted] »

ouid wrote: post #91
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…

it's not similar at all. No one can prove that an encrypted drive is an encrypted drive and not a random number. whereas a safe is plainly a safe.

[deleted]

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

#96

Post by stagbeetle »

walrus wrote: post #89
M_Grey wrote: post #70

Earlier quoted context omitted.

More and more I'm convinced that the only solution is data destruction on a fail-deadly system. Like a warrant canary, if it's your default operation, you should be alright. As I always add though, don't keep your family photos on that drive.

I don't understand what a fail-deadly drive would look like. Can you give an example?

I'd imagine you'd have to do a task (like inputting a passcode) every so often or the drive would be made inoperable.

For SSD's it'd be as simple as an automatic single pass overwrite and a new encryption key. For HDD, the hyper-paranoid could rig their drives with small explosives to fracture the platters.

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

#97

Post by Buge »

eridius wrote: post #52
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 p…

That's like saying "The jury found you guilty of shoplifting, therefore we will put you in jail indefinitely until you confess". Sure them confessing after the conviction adds no information, but you still can't compel someone to do it under threat of a life sentence.

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

#99

Post by Buge »

oxide wrote: post #84
a3n wrote: post #66

Earlier quoted context omitted.

yeah, if it's a foregone conclusion, then why isn't the trial over and time being served?

Where's the mandatory minimums for possession of child porngraphy? The zero tolerance? Our prisons fill with drug offenders, yet we give sex offenders a scarlet letter + probation?

Keep in mind that a 17 year old taking a nude picture of themself is in possession of child pornography. Do you want a harsh minimum sentence for that?

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

#100

Post by theonemind »

Quite a minefield of legal issues. Indefinite detention pretty much seems like an abuse of the court's power to find people in contempt. He should get charged with a real crime like obstructing justice and serve a sentence for it, if they have the evidence for that, but this is absurd.
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