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

#351

Post by dragonwriter » Tue, Mar 21, 2017, 5:11 PM UTC

pc86 wrote: post #306

pbhjpbhj wrote: post #301

Earlier quoted context omitted.

So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible? Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence. Who does such an interpretation of The Fifth protect?

As the courts have interpreted it, 5A protects you if they can't even prove the safe is yours, or if otherwise admitting that you know the combination or that you know what's in the safe would result in incriminating testimony. 5A doesn't apply here because they know the device is his, and that prior to his arrest he had regular access to it. It's not incriminating testimony, it's delivery of evidence in a criminal t…

Delivery of evidence is delivering the hard drive; changing the state of the evidence is a concretely different thing.

It amounts to interpreting the existing evidence for law enforcement.

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

#352

Post by rayiner » Tue, Mar 21, 2017, 5:14 PM UTC

justinrandoh wrote: post #330

rayiner wrote: post #78

Earlier quoted context omitted.

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…

>However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. Here's what I'm missing: why doesn't, in a similar vein, the government simply ask him to unlock the hard drives without any claimed assumption as to t…

I suspect that's what happened. But the court gets into the whole issue with Fisher to address an argument that the defendant made. IMHO it was unnecessary to even go down that road.

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

#353

Post by rayiner » Tue, Mar 21, 2017, 5:20 PM UTC

RangerScience wrote: post #157

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…

If I understand the parent post, it's basically protecting you against the "leading questions" of investigation...? You opening the safe cannot be used as evidence against you; that would cause your action to be "testimonial", and protected. The contents of the safe are evidence, and not testimonial. If I'm understanding this correctly; it would be like saying "open the safe with the illegal weapons in it", and point…

> If I'm understanding this correctly; it would be like saying "open the safe with the illegal weapons in it", and pointing at the safe. If you open it, does that mean you're admitting the weapons are illegal?

Kind of, yes. The non-contrived situation where this comes up is with subpoenas. A subpoena will request specific documents or specific kinds of documents. Responding to the subpoena requires making judgments about what documents are responsive to the request, and there is an implicit assertion that documents produced fall within the scope of the subpoena request.

So the government cannot, for example, make you "produce all accounting records containing false numbers." Producing documents in response to that comes with the implicit admission that the accounting records are false. The government can eliminate that problem simply by asking for all accounting records.

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

#354

Post by jacquesm » Tue, Mar 21, 2017, 5:55 PM UTC

pc86 wrote: post #308

jacobush wrote: post #213

Earlier quoted context omitted.

Or very carefully shot himself in the heart?

Surely this layman knows enough about the brain to know how to lobotomize himself such that he forgets his passwords, but not such that he forgets how to perform a self-lobotomy!

That's easy, just snip the blue neurons. Or was it the red ones? No, definitely blue. (Snips red neuron.)

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

#355

Post by marcosdumay » Tue, Mar 21, 2017, 5:57 PM UTC

rayiner wrote: post #342

marcosdumay wrote: post #322

Earlier quoted context omitted.

And here we are, talking about a guy presumed to have some information on his head, arrested for refusing to disclose that information, in a thread about legal professionals creating BS, with somebody arguing that "witness" has a legal meaning that does not cover people disclosing information they have on their heads... Or, at least not on this case.

> arrested for refusing to disclose that information The information in the guy's head is the password. They're not asking him for the password. They're asking him to perform the action of decrypting the drive. They explicitly told him he could keep the password secret.

Yep, that's really a very good non-BS interpretation that does not harm common sense in any way.

In related murder news, murder suspect detained indefinitely until he shows hidden body to the police. They don't want him to tell them where is the body, they just want him to drive them there so they can dig it up.

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

#356

Post by paulddraper » Tue, Mar 21, 2017, 5:58 PM UTC

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…

I put you in a room with an encrypted drive and no password, and you will eventually be able to open the drive.

That you acquire the password in the process of opening it is immaterial.

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

#357

Post by michaelmrose » Tue, Mar 21, 2017, 6:06 PM UTC

timv wrote: post #229

michaelmrose wrote: post #155

Earlier quoted context omitted.

Its literally impossible to prove someone has or hasn't forgotten something. You shouldn't be able to jail someone indefinitely for not producing something you can't prove exists.

Yes, but that's fairly well tested ground and isn't unique to this case. Witnesses (in the sense of being called to that stand in a courtroom) are frequently asked to tell the court what they saw/heard/did, or from where/whom they received information. Refusing to answer may get them pulled up on contempt charges, and if they claim not to remember then the judge needs to decide whether they are lying. Given the impos…

I think that the difference is that people are generally good at remembering the details that judges are normally interested in. People are notoriously bad at remembering passwords.

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

#358

Post by harryh » Tue, Mar 21, 2017, 6:12 PM UTC

marcosdumay wrote: post #355

rayiner wrote: post #342

Earlier quoted context omitted.

> arrested for refusing to disclose that information The information in the guy's head is the password. They're not asking him for the password. They're asking him to perform the action of decrypting the drive. They explicitly told him he could keep the password secret.

Yep, that's really a very good non-BS interpretation that does not harm common sense in any way. In related murder news, murder suspect detained indefinitely until he shows hidden body to the police. They don't want him to tell them where is the body, they just want him to drive them there so they can dig it up.

Your comparison between decrypting a file and locating a body neatly demonstrates the conflict at the heart of this case. The conflict is formally known as the "foregone conclusion doctrine."

There was an excellent discussion of this case and the principles behind this doctrine in the Washington Post last year:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

Orin Kerr does an excellent job explaining why he thinks the doctrine applies to decrypting files. You might enjoy reading it.

The appropriate analogy to this case is not "until he shows hidden body to the police" but "until he opens the door to his garage where they have reason to believe there is a body".

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

#359

Post by Sir_Substance » Tue, Mar 21, 2017, 6:24 PM UTC

rayiner wrote: post #270

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…

> 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 That's not what the "foregone conclusion" stuff is about, at all. They're not saying "it's obvious he's guilty so the 5th amendment does not apply." The 5th amendment doesn't apply to handing over evidence, period. It's about the circumstances under which handing over evidence (which ord…

None of that is why I'm bringing it up. I bring it up to point out that we have no reason to believe that the prosecution won't request indefinite detention until he gives up the password, even if it might be impossible for him to do so.

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

#360

Post by Sir_Substance » Tue, Mar 21, 2017, 6:27 PM UTC

RandomException wrote: post #294

erelde wrote: post #274

Earlier quoted context omitted.

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.

Well, certainly not if the judge is willing to allow indefinite detention without trial. That's one of the key concerns I have with this case. I'm not seeing presumption of innocence play out here.

The west used to mock and deride the USSR for this kind of thing.