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

#191

Post by kelnos » Tue, Mar 21, 2017, 9:13 AM UTC

salesguy222 wrote: post #9

mgamache wrote: post #2

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

Reading this story actually makes me ill. When a technical defense protects you from the state, they jail you for contempt. When you say, "but we have a constitutional amendment that protects us from self-incrimination", they say "sure but that doesn't apply here." And of course it is child porn that is in question. It is a mere crime to "possess" it, that is to say, possess a hard drive on which images are found. It…

If that's all they had, I'd probably agree with you. But that's not. They have:

* Backup logs that show hashes of files that match that of known child porn image files.

* Testimony from the guy's sister that she has seen him decrypting the drives, and that he showed her child porn from the drives.

So yes, what you're saying is true, but in this case, I'm (reluctantly) on the side of the authorities.

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

#192

Post by jMyles » Tue, Mar 21, 2017, 9:17 AM UTC

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…

I must say I find this logic quite unconvincing.

What is a confession but a piece of evidence stored in memory made of biological matter?

How is it different to grant a confession where the memory is electronic rather than biological?

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

#193

Post by dublinclontarf » Tue, Mar 21, 2017, 9:18 AM UTC

Sir_Substance wrote: post #183

jaredklewis wrote: post #170

Earlier quoted context omitted.

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…

So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I thin…

> what should we do?

Release him and pay millions in compensation for violating his writ of Habeas corpus.

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

#194

Post by mickronome » Tue, Mar 21, 2017, 9:20 AM UTC

Sir_Substance wrote: post #183

jaredklewis wrote: post #170

Earlier quoted context omitted.

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…

So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I thin…

Good point, I definitely can't remember my more complex passwords for more than a month or two if I'm not using them.

It is also not too hard to essentially forget a complex password by either 'blanking it out', or associating it with multiple similar paswords during recall.

There are no easy solutions to encryption in this context, apart from what it clearly tells us: That society needs to focus on prevention and care, and not rely on policing and punishment to keep society safe as much as now.

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

#195

Post by caf » Tue, Mar 21, 2017, 9:21 AM UTC

gscott wrote: post #130

shard972 wrote: post #102

Earlier quoted context omitted.

I don't think drug offenders should be put in prison since it's a victimless crime. I think child porno while much more serious does invoke some of that chain of reasoning. To me there is a big difference between a guy who found some on the internet and someone who produces or pays for it. I would be wary of putting in minimum sentencing for such crimes unless it was only targeted towards those producing/paying as yo…

There was a sex offender who wrote on paper fictional stories of child sex and he was put back into jail for a violation of his parole (for writing it, never shared it). If you have child pornography the law considers it the same as taking the photo and you can be sued civilly by the victims. People love it when lawmakers make more laws.

Remember that parolees are still under sentence. There are almost always restrictions on parolees that go beyond those on the general population - that is the whole point of the parole system, you agree to live under sometimes onerous restrictions in return for being allowed out before your sentence is up.

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

#196

Post by erelde » Tue, Mar 21, 2017, 9:24 AM UTC

Sir_Substance wrote: post #183

jaredklewis wrote: post #170

Earlier quoted context omitted.

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…

So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I thin…

> I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months

I would like to believe they do... But I don't think they'd bother with that.

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

#197

Post by pmyteh » Tue, Mar 21, 2017, 9:26 AM UTC

Sir_Substance wrote: post #183

jaredklewis wrote: post #170

Earlier quoted context omitted.

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…

So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I thin…

Civil contempt is coercive, not punitive. In theory, he gets released when it's clear that he won't decrypt the drive even if indefinitely incarcerated. So in principle, in the event you describe, we let him out.

Of course, knowing that he actually has forgotten the password is somewhat tricky, so what would actually happen is anyone's guess.

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

#198

Post by erelde » Tue, Mar 21, 2017, 9:27 AM UTC

jaredklewis wrote: post #170

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…

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…

But passwords and hard drives are not documents. What's on it are "documents" but it's akin to refusing to pull memories out of your brain.

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

#199

Post by ominous » Tue, Mar 21, 2017, 9:32 AM UTC

jaredklewis wrote: post #170

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…

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…

If a confession can be evidence of being guilty, refusing to confess is to withhold evidence?

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

#200

Post by goodplay » Tue, Mar 21, 2017, 9:36 AM UTC

tonyedgecombe wrote: post #187

repples wrote: post #180

Earlier quoted context omitted.

The court accepted evidence that he'd downloaded and shared all manner of such filth, including both technical evidence and testimony from his sister.

Then why couldn't they convict him on that evidence?

This is my main gripe. You either have the evidence to put the defendant in jail or you don't. If you don't have enough evidence to support putting him in jail, you let him free.

Innocence until proven guilty. I don't want to live in a society where law is determined by emotions and personal bias, even if some criminals end up escaping justice.

Side note: I can't believe I feel the need to state this, but evidently it needs to be stated (from comments in this thread): these two drives where set up as part of a backup solution. They contain my personal data. They do not contain child pornography.