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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

#291

Post by Fjolsvith »

shard972 wrote: post #62
eridius wrote: post #52

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. 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…

> 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…

The problem has to do with precedent. If the prosecutors give up on this issue, then future defendants can cite this case in their defense.

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

#292

Post by harryh »

_archon_ wrote: post #286
harryh wrote: post #264

Earlier quoted context omitted.

Thought experiment: What if you kept two sets of bank records for your business. One set of bank records were truthful and demonstrated your guilt. The others were falsified and demonstrated your innocence. What would happen if, after your bank records were subpoenaed, you hand over the falsified records? Well, you'd be committing a crime. Maybe you get away with it, or maybe law enforcement figures it out and you ge…

Hmm... I believe there may be a distinction here. Decrypting to the false virtual contents would be more like presenting a copy of the bank records that were correct, but the file had been corrupted and the data was unusable. However, the corrupted but true records had been created before the subpoena (not trying to obstruct) and were handed over in good faith. You wanted the contents of this drive? Here they are! Th…

The scenario you describe is not at all like the situation at hand. Data corruption and encryption are not the same thing as encryption is a fully reversible process.

Further, the owner of the drive is not in a legal or moral grey area. They are in a "black" area where it's quite clear that they are being intentionally deceptive in defiance of a court order.

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

#293

Post by vilhelm_s »

tombert wrote: post #289

It seems like the law is kind of ambiguous on this ( https://en.wikipedia.org/wiki/TrueCrypt#United_States_v._Joh... ), unless my interpretation is completely flawed. I wonder if this will have to go to the Supreme Court at some point.

In this case, the 3rd circuit applied the same standard as the 11th (the government can compel decryption if they know what is on the drive), so it doesn't yet create a circuit split.

However, they don't decide that that is the right standard. In a footnote they suggest that the correct standard would be more lax (the government can compel decryption if they know the person knows the password). So if a case comes up where they rule that way, it would create a circuit split and lead the supreme court to take the case.

Orin Kerr writes a column about it here: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

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

#294

Post by RandomException »

erelde wrote: post #274
erelde wrote: post #196

Earlier quoted context omitted.

> 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.

How many 20 characters passwords could we try in 600 days ? And by imaging the original drive unto multiple others ? I mean 18 months. It's a lot.

Not worth the resources though.

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

#295

Post by Fjolsvith »

Chris2048 wrote: post #268
PJDK wrote: post #247

Earlier quoted context omitted.

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 c…

> this case is one where the evidence is known to exist If that's the case the files aren't needed, they want to see the drive contents on the off chance of finding some other evidence.

This is only part of their motivation. The other is that the prosecutor likely wants to avoid setting a precedent that future defendants can cite in their defense.

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

#296

Post by Fjolsvith »

TheRealDunkirk wrote: post #266
taneq wrote: post #245

Earlier quoted context omitted.

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

Eighteen months without a charge. I think they're way ahead of you. IMO, they've already abrogated his 6th-Amendment right to a speedy trial as well.

There are a lot of things that waive the speedy trial right. If a defendant files pretty much any kind of motion, the speedy trial timeframe goes out the window.

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

#297

Post by geggam »

int_19h wrote: post #203
bobbington wrote: post #36

Earlier quoted context omitted.

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…

I agree that the sheer power and reach of SCOTUS today, and increased partisanship in practice (even though everyone pretends it's a non-partisan body), does necessitate some reform. But electing judges makes no sense - you might as well then just give the fullness of power to Congress, a la UK's parliamentary sovereignty. What I think we should do is revisit what exactly SCOTUS does, and why. Right now they basicall…

This is the part of the system which makes me scratch my head.

The constitution is the source of where the courts derive their power. Being able to change the level of power you have seems to be against the constitutions purpose of defining, limiting, and binding the Govt.

Article III, Section 2, Clause 1 of the Constitution states:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,

.... Not OVER the constition... Under it.

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

#298

Post by jMyles »

kefka wrote: post #219
jMyles wrote: post #192

Earlier quoted context omitted.

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?

I see a pretty bad course of events. "Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do." And I also seem to remember a certain dead salmon who in an fMRI, showed amazing brain activity(!).

> "Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do."

Yeah, exactly.

It seems to me that unless we decide that memories stored in digital media is subject to the same sorts of rights against intrusion from the state as memories stored in biological media, the scenario you describe is inevitable precisely because the line between these two types of memory will be increasingly blurred.

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

#299

Post by naasking »

paulddraper wrote: post #182
naasking wrote: post #68

Earlier quoted context omitted.

> If there is a warrant to search my property, I am obligated to assist if required. I'm not sure that's true, the police are authorized to break whatever they need to if you don't assist. As for combo safes, this seems like a good overview: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s...

Yes, they can proceed without your assistance. Also, they can charge you with obstruction with justice.

Are you sure about that? I don't think warrants require you to assist the police in their search, you simply can't obstruct them, so they can't charge you with anything.

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

#300

Post by jMyles »

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…

My comment wasn't meant to speak to the test of the federal register, under which a huge part of the everyday lives of Americans are federally prohibited.

I was more speaking to the question, "is it a crime?" IE, is it a crime in any sort of common-law sense and the proper purview of a government in a functionally free society.

In that sense, I do not believe that the wholesale fabrication of any form of media is a crime.

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