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Man jailed indefinitely for refusing to decrypt hard drives loses appeal

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

#251

Post by harryh »

erelde wrote: post #198
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…

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.

The purpose of the prohibition against testifying against oneself in the 5th amendment is not a protection of one's privacy (as many here seem to believe). It is to precent coerced false confessions. The difference between false testimony and a falsely revealed password is that the testimony is not obviously false but the password will be.

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

#252

Post by haikuginger »

RUG3Y wrote: post #61
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've thought of this but it usually takes some time to overwrite a lot of data. I'm not savvy enough to know if there's a way to nuke the data that quickly, other than non-software methods. A friend of mine used to keep a massive electromagnet in is PC tower, that would theoretically wipe the hard drives when switched on. We never tried it. (He wasn't dealing in CP, just pirating mass quantities of movies and music).

FDE best practices are to encrypt the entire drive with a random key, and encrypt that random key with a derived key (key-encrypting key, or KEK) based on password. You don't have to nuke the whole drive; just the sector with the KEK-encrypted drive key.

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

#253

Post by BearGoesChirp »

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…

>Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts.

Part of the issue seems to be the courts are very proficient in coming up with very interesting interpretations. It feels a lot like a literature or art interpretation class, where everything is BS but a lot of people have a bunch of rules convincing them they aren't. Then again, the founding father's weren't too much different.

Founding fathers: "All men created equally".

Also founding fathers: owns slaves (some at least)

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

#254

Post by cesarb »

paulddraper wrote: post #49
trav4225 wrote: post #46

Earlier quoted context omitted.

Not quite, IMO -- combination safes can be feasibly opened without the combination.

Encrypted drives can be opened without the password. Difficulty varies of course, but it can be done (e.g. iPhone).

> Encrypted drives can be opened without the password.

No, they can't. The way it's done is by trying many passwords until the right one is found. Once you have the right password, you can use it to decrypt the drive's contents, but then you are "opening it with the password".

(IIRC, there were some bad "hardware encryption" HDDs where the password wasn't actually used to encrypt the drive's contents, just verified against something in the drive's NVRAM; these can be bypassed. But that's not the case here.)

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

#255

Post by School-Cotton »

dublinclontarf wrote: post #193
Sir_Substance wrote: post #183

Earlier quoted context omitted.

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.

A court granted him a writ of habeas corpus? When? That changes everything if true, but I'm pretty sure you're mistaken.

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

#256

Post by harryh »

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.

While it's true in a mathematical sense that one may not be able to prove that a sequence of seemingly random bits is an encrypted files that is not true in a legal sense. The law isn't about proving things 100%. The law is about weighing the available evidence and proving things to various standards (preponderance of the evidence, beyond reasonable doubt, etc).

For example if if there are server logs showing I downloaded illegal files, and there are people who testify that I talked about downloading illegal files, and there is non pre-installed software on my computer that is used for encryption then probably that sequence of random bits is an encrypted file.

Maybe you can't prove it mathematically, but you can prove it legally.

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

#257

Post by rayiner »

throwaway91111 wrote: post #126
rayiner wrote: post #87

Earlier quoted context omitted.

It's not bizarre at all. "To be a witness against himself" is not metaphorical or ye olde English. It literally means what it says--the government can't force someone to testify against himself ( i.e. to provide a confession). If the Founders had meant to say that the government can't compel someone to cooperate in an investigation at all , they would have said that.

Ahh yes, they spell out their interpretation clearly in the companion manual to the constitution.

The companion manual is called a dictionary. The word "witness" means someone who provides testimony based on personal knowledge.

If the framers had meant to say "provide evidence" instead of "be a witness" they would have said that. They were lawyers and those words were commonly used legal terms that meant the same things they do today.

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

#258

Post by byuu »

jMyles wrote: post #164
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…

> 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.

> The answers to these questions are obvious: no and no.

Tell that to Chris Handley [1]. He imported a pornographic comic book from Japan, a postal inspector got his panties in a bunch over it, and a prosecutor pushed for 15 years in prison and life as a sex offender unless he plead guilty.

Knowing he'd probably lose in front of a jury of his peers [2], and being blackmailed with the threat of 15 years, he took a plea for six months in prison. Wasn't even afforded the right to a fair trial.

Oh, and it's not just pictures, either. Textual, fictional stories can be "obscene" as well. It is possible to write a fake story in a Hacker News comment that can get you 15 years in federal prison in the US.

[1] http://cbldf.org/about-us/case-files/cbldf-case-files/handle...

[2] it's deemed "obscene", which is a magic "get out of Free Speech free" card, so it falls under the Miller Test. You could get a jury in a very deep red county to find two fully-clothed males kissing as "obscene" if you wanted. "Obscenity" is the thing that needs free speech protections the most.

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

#259

Post by pessimizer »

dublinclontarf wrote: post #193
Sir_Substance wrote: post #183

Earlier quoted context omitted.

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.

Not in the US: http://www.nytimes.com/2011/12/02/us/senate-declines-to-reso...

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

#260

Post by DanBC »

cesarb wrote: post #254
paulddraper wrote: post #49

Earlier quoted context omitted.

Encrypted drives can be opened without the password. Difficulty varies of course, but it can be done (e.g. iPhone).

> Encrypted drives can be opened without the password. No, they can't. The way it's done is by trying many passwords until the right one is found. Once you have the right password, you can use it to decrypt the drive's contents, but then you are "opening it with the password". (IIRC, there were some bad "hardware encryption" HDDs where the password wasn't actually used to encrypt the drive's contents, just verified a…

> IIRC, there were some bad "hardware encryption" HDDs

About those: http://www.h-online.com/security/features/Enclosed-but-not-e...

Sadly the images appear to be not working. But they were very clear: what should have been a point cloud had clear lines.

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