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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

#241

Post by haikuginger »

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?

The ability to convict a particular case on a particular set of evidence is unknowable before trial, where the facts are decided by a jury. It would be irresponsible for a prosecutor to attempt a trial if they know stronger evidence is available.

The prosecution was able to convince a judge that there is encrypted child pornography on those drives. The judge can't force a jury to accept that (a ruling of fact), but (s)he can make a ruling of law that the defendant no longer has a fifth amendment defense to producing a decrypted version of those drives.

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

#242

Post by robinson-wall »

kelnos wrote: post #191
salesguy222 wrote: post #9

Earlier quoted context omitted.

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.

The problem is it feels like they're using this case, where the guy is obviously guilty, to set a precedent despite having enough evidence to convict him already.

Maybe next time they won't have evidence, but there's a handy encrypted drive to get someone with instead.

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

#243

Post by taneq »

girvo wrote: post #165
jMyles wrote: post #164

Earlier quoted context omitted.

> That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn? The answers to these questions are obvious: no and no. If the answers are any different or short of being absolute, then that's a clear hole in the first amendment.

In Australia, cartoon child porn is also illegal.

In fact, IIRC even actual porn containing only provably adult actors is illegal if a judge decides it looks like someone might be underage.

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

#244

Post by jacquesm »

ManlyBread wrote: post #166
shard972 wrote: post #62

Earlier quoted context omitted.

> 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. The immediate thought that comes to my head when they say this is: Then whats the problem? You can prove it, so why do you need more proof? Unless your possibly maybe your case isn't rock solid or you want to find more…

I would suspect that the footage itself can be very valuable in terms of further investigations, so they're pushing for it because it will benefit them in future. The man will end up in prison anyway, so it's not like the law enforcement has something to lose.

No, that means that he's jailed indefinitely for possibly imaginary reasons that have nothing to do with the case at hand.

> The man will end up in prison anyway

But may actually end up longer in prison for contempt of court.

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

#245

Post by taneq »

tedunangst wrote: post #136
craftkiller wrote: post #123

Earlier quoted context omitted.

Wow, that's a lot against this guy, but hypothetically couldn't compelling him to decrypt his drives based on a file hash set a dangerous precedent where police can just plant file hashes somewhere to get access to anyone's drives? Sort of the high tech version of the drug dogs that would signal on cue.

They could also plant an unencrypted drive and skip the whole getting the password step.

If they're going to ignore that pesky 'staying within the law' step they might as well just lock him up indefinitely right now.

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

#246

Post by lsaferite »

msravi wrote: post #230
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…

Let's say a guy has some documents that he happened to show someone that can implicate him in a crime. The person he showed it to testifies that the guy showed it to him/her. Can he be held until he turns over those documents?

Well, seeing that this is what is currently happening, I'd say the answer is "Yes."

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

#247

Post by PJDK »

mickronome wrote: post #204
mjolk wrote: post #110

Earlier quoted context omitted.

The defendant provided the password to his iphone (that contained highly-unsavory media of his nieces), which contained an unlock code for his laptop (filevault backup decrypt key). He connected the external drives to this laptop, and when he'd transfer media from his laptop to the drives, logging would occur with the file checksums. The hash/checksum is on the laptop with the filepath to the identified external driv…

If the hashes are known to match, there is really no need for the original pictures, the evidence is already there? This makes it sound more like it's a fishing expedition for evidence to use in other investigations, or to find evidence for a more severe punishment, both of which one can morally agree or disagree with, but is it how justice should work? I honestly don't know, but I think probably not. It's a detestab…

I'm confused by your reasoning here. If we agree that the files are definitely on the system how is it a "fishing expedition" to want to see those files for further investigation. A fishing expedition would be forcing everyone to submit their devices for inspection on the off chance of finding evidence - this case is one where the evidence is known to exist and a person is refusing to hand it over.

The less emotive case would be the hard drive contained bank statements for tax avoidance - and I would still think that a court should be able to compel someone to produce that.

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

#248

Post by lsaferite »

mjolk wrote: post #110
killjoywashere wrote: post #106

Earlier quoted context omitted.

I'm not sure I understand something, either their argument about hashes, or how whole disk encryption works. I assumed that whole disk encryption meant that the disk, unencrypted, has high entropy, so the whole thing equally looks like snow. Doesn't FileVault encrypt the whole disk? So, where's this hash?

The defendant provided the password to his iphone (that contained highly-unsavory media of his nieces), which contained an unlock code for his laptop (filevault backup decrypt key). He connected the external drives to this laptop, and when he'd transfer media from his laptop to the drives, logging would occur with the file checksums. The hash/checksum is on the laptop with the filepath to the identified external driv…

This is about the only way I'm ok with what they are doing. If this is the case, then I'm 100% ok with compelling him to unlock the drive for the sole purpose of accessing those files. Anything else on the drive should be off limits as it then becomes testimonial.

To me the danger is, what if this person committed other crimes and by unlocking the drive he give the prosecution info about those crimes. In a world where the investigators and/or prosecution have gotten away with parallel construction I wouldn't expect them to play fair. I mean, realistically it sounds like they guy is guilty as sin. That being said, I'd rather he get away with those hypothetical crimes than we start allowing situations like this to happen.

So, to recap, make him unlock to read the known files (by exact path) and nothing else on the drive.

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

#249

Post by cmdrfred »

michaelmrose wrote: post #149
CompuHacker wrote: post #131

Earlier quoted context omitted.

Improbable.

When the average time to unlock is equal or greater to the probably heat death of the universe this distinction ceases to matter.

You could also get it right on the first guess, so its improbable not impossible.

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

#250

Post by MichaelBurge »

icebraining wrote: post #188
jMyles wrote: post #164

Earlier quoted context omitted.

> That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn? The answers to these questions are obvious: no and no. If the answers are any different or short of being absolute, then that's a clear hole in the first amendment.

"18 U.S. Code § 1466A - Obscene visual representations of the sexual abuse of children Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that (1) (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene (...) or attem…

> (B) is obscene

Those two words are hiding a lot. For example, it's probably not obscene in Oregon, since part of the Miller test defers to state law and we have a stronger state equivalent of the 1st amendment in our state constitution that would allow it.

And if you wrapped it in a story(like a manga or comic), it would be easier to argue that it has literary or artistic merit. Though, a "states' rights" argument would probably be more likely to succeed.

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