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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

#331

Post by contravariant »

rayiner wrote: post #87
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 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.

I don't agree that testifying is the same as confessing. To testify is to provide a testimony (under oath), which is broader than an actual confession. The reasoning behind the 5th amendment is that nobody should be put in a position where they either have to lie, incriminate themselves, or be held in contempt of court.

If the government can't compel someone to say when, where and how they disposed of the bodies, then they also can't make someone explain how they encrypted some files.

In case they can confirm the existence of files some other way I guess you could make the case that the government can force someone to produce those files. Of course this won't tell them anything they didn't know already (which is kind of the point). Making someone produce files that may or may not exist is the same as making them testify that those files exist and that they have access to them, which I would argue falls under the 5th amendment.

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

#332

Post by [deleted] »

pmyteh wrote: post #197
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…

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.

[deleted]

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

#333

Post by mjolk »

TheRealDunkirk wrote: post #265
lsaferite wrote: post #248

Earlier quoted context omitted.

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 wher…

To me, this whole thing smells of the classic tactic of telling the guy, "We know you're guilty; just confess, and we'll go easy on you." Which, of course, is a lie. So I am of the opposite opinion. If the hash information isn't enough to try him with, then I'd rather he go free, than set a precedent that it's acceptable for a court to compel someone to decrypt information because someone in law enforcement just "kno…

> To me, this whole thing smells of the classic tactic of telling the guy, "We know you're guilty; just confess, and we'll go easy on you." Which, of course, is a lie...If the hash information isn't enough to try him with, then I'd rather he go free, than set a precedent that it's acceptable for a court to compel someone to decrypt information because someone in law enforcement just "knows" the evidence is there.

I'm sympathetic to why you'd be cautious, but that's not fitting in this case -- this is a highly specific case with a number of circumstances that meaningfully differentiate it from the generic case of providing decrypted media. He's guilty and the checksums are enough to convict him (we're talking many checksums, metadata, partial confessions) and this is about him frustrating the discovery process.

> Because once this order is allowed to stand, the level of certainty required to compel decryption is going to continually be lowered.

This is a slippery slope fallacy. I had some leaning towards this perspective, but then I read the source document, which goes into far more detail. There's a definite nuance to this case.

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

#334

Post by mjolk »

taneq wrote: post #245
tedunangst wrote: post #136

Earlier quoted context omitted.

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.

They're staying within the law -- the defendant being in violation of the law is why an order to comply was filed and why we have access to the court of appeals document.

If you don't like the process, that's a different conversation.

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

#335

Post by bluesign »

rayiner wrote: post #112
olliej wrote: post #103

Earlier quoted context omitted.

Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password th…

> Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? Basically, judges don't agree on which way this scenario comes out. > Outside of the law i don't like the forgone conclusion stuff - for example, revoluti…

How this works if there is other evidence in the HDD, for example piracy, list of stolen goods, location of bodies he buried. How 'foregone conclusion' can be applied?

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

#336

Post by [deleted] »

xelxebar wrote: post #303
kelnos wrote: post #184

Earlier quoted context omitted.

IANAL, but from reading about this case (and opinions from actual lawyers), I believe it's because they actually don't have the evidence to convict (or they believe the evidence they have, absent the files on the encrypted drive, are not enough, or at least not enough for the sentence they want). They know the evidence on the drive exists, but cannot get up in front of a judge and jury and say "because we found these…

I'm not so confused about the legality here as much as I don't understand why they need the files at all if they have irrefutable evidence that he has them. If I have sales receipts and camera footage showing you purchased 100 Led Zeppelin CDs, do I need to see the CDs in person before I know you have good taste in music? I'm guessing this has something to do with the subtleties of admissible evidence versus 4th amen…

[deleted]

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

#337

Post by mjolk »

mickronome wrote: post #228
mjolk wrote: post #82

Earlier quoted context omitted.

Head's up that the source goes into some detail and is a miserable, sickening read. Per the source ( https://cdn.arstechnica.net/wp-content/uploads/2017/02/fedsr... ), the prosecutors already have a case based on checksums of the media that the defendant had downloaded, and per the logs, stored on his external hard drive. I imagine that the prosecution wants the media so they can perform harm reduction services for t…

But harm reduction and improving data for other cases is not the intended use of warrants and contempt of court, or is it?

No, and thanks for catching that.

My understanding is that the prosecution doesn't need the decrypted data to secure a guilty verdict, but as they're entitled to it, they likely want it for secondary benefit.

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

#338

Post by BearGoesChirp »

wfo wrote: post #326
BearGoesChirp wrote: post #253

Earlier quoted context omitted.

>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…

You are correct in that as a non-lawyer (I am a non-lawyer as well) you cannot read the law and reliably, confidently understand what it means, much in the same way a non-programmer cannot read read code and understand what it means. There is a problem with this which is that non-lawyers are required to comply with the law but that's not really the issue here. If you're trying to argue courts have gone through mental…

>Slavery was most definitely intentionally allowed, no interesting interpretation necessary.

Legally yes. I was talking referencing how the founding fathers were not consistent in matching the government they created with some of their prior statements which were part of the reason they were in a position to create the government. Largely I said this to preempt the oft response that the founding father's weren't consistent with their own view of rights.

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

#339

Post by BearGoesChirp »

0xcde4c3db wrote: post #50
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…

If I'm reading things correctly (IANAL, so it's very possible that I am not), it seems like there's not a lot of consensus. Some rulings say that the court can't compel you to disclose or use a password. Others say that per the Fifth Amendment it can't compel you to reveal "the contents of your mind", but can compel you to produce the protected items without disclosing the password, as those are covered by the Fourth…

What happens when I ask for you to produce the password required by this super highly technical algorithm (insert lots of jargon to make the jury's eyes glaze over) called xor which will take the given file and turn it into another file that contains something illegal? Can you prove there isn't a password? Can you prove they didn't forget the password? Should forgetting a password for an encrypted file containing unknown material be cause for a life sentence?

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

#340

Post by BearGoesChirp »

kelnos wrote: post #186
hackuser wrote: post #65

Earlier quoted context omitted.

And for ease of reading, I'll reply to my own comment with other interesting issues: * "The fact remains that the government has not brought charges," [his attorney] Donoghue said in a telephone interview . It seems a warrant is at issue, if I understand correctly. * The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Depa…

> My completely amateur thoughts: If they already can prove he has child porn, then they don't need the additional evidence. If they do need the additional evidence, then he is incriminating himself. Except that's not how it works, and that's not what the 5th protects against. Let's say you have bank records that incriminate you in some money-laundering scheme. The authorities know that you have these records, becaus…

And what happens if the one who testified that you do have the records lied? Do you go to prison for not producing documents you do not have? How would you prove you don't have them? What if you had them but shredded them once you didn't need them (because you shred all bank information, nothing special about these records)?
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