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

#371

Post by marcosdumay » Tue, Mar 21, 2017, 8:17 PM UTC

harryh wrote: post #358

marcosdumay wrote: post #355

Earlier quoted context omitted.

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…

Yet another article assuming that telling a decryption key is the same as delivering a document you possess.

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

#372

Post by some_guy_there » Tue, Mar 21, 2017, 8:38 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…

Take this comment as what I think 5th amendment should imply, not how it is currently applied by the courts.

The concept of forgone conclusion is very weird. Imagine that I tell someone that I maintain a diary with log of all the events everyday. Then I tell this to my friends, family, (the police), etc.

Let's say the prosecution can prove that I was at a spot where something illegal happened. If they knew I wrote a diary everyday, they can compel me to produce my diary, which will then be used against me (if needed).

If on the other hand, I tell everyone (and the police) that I have photographic memory and remember anything I see and do, that information is protected by fifth amendment. So in this case, I won't provide something that will be used against me.

It is very weird that when the plain words of the amendment read "compelled in any criminal case to be a witness against himself", it is only thought to include literal production of testimony from mind as confession, while on the other hand, the first amendment is not read literally to allow only freedom of (say) owning a press, the press being a physical printing press.

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

#373

Post by harryh » Tue, Mar 21, 2017, 8:45 PM UTC

marcosdumay wrote: post #371

harryh wrote: post #358

Earlier quoted context omitted.

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…

Yet another article assuming that telling a decryption key is the same as delivering a document you possess.

The defendant in question here is not being asked to tell anyone their encryption key. They are, in fact, being asked to deliver a collection of documents they possess.

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

#374

Post by dragonwriter » Tue, Mar 21, 2017, 8:48 PM UTC

harryh wrote: post #373

marcosdumay wrote: post #371

Earlier quoted context omitted.

Yet another article assuming that telling a decryption key is the same as delivering a document you possess.

The defendant in question here is not being asked to tell anyone their encryption key. They are, in fact, being asked to deliver a collection of documents they possess.

No, they are being asked to transform a collection of documents they possess, using information they allegedly possess in their mind about those documents, and deliver the product of that transformation.

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

#375

Post by harryh » Tue, Mar 21, 2017, 8:52 PM UTC

dragonwriter wrote: post #374

harryh wrote: post #373

Earlier quoted context omitted.

The defendant in question here is not being asked to tell anyone their encryption key. They are, in fact, being asked to deliver a collection of documents they possess.

No, they are being asked to transform a collection of documents they possess, using information they allegedly possess in their mind about those documents, and deliver the product of that transformation.

That's a characterization I can agree with. But that transformation still isn't, in my mind, testimony. It's an action.

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

#376

Post by 69mlgsniperdad » Tue, Mar 21, 2017, 8:56 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!

I can attest that it indeed quite simple. Have done a nearly a dozen on myself, no evident issues whatsoever.

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

#377

Post by braveo » Tue, Mar 21, 2017, 8:57 PM UTC

PJDK wrote: post #247

mickronome wrote: post #204

Earlier quoted context omitted.

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 c…

> If we agree that the files are definitely on the system [snip]

then prosecute him and be done with it. Anything else is either a fishing expedition or we don't all agree that the files are definitely on the system... in which case it's still a fishing expedition.

hashes can be inaccurate, it isn't a foregone conclusion in reality, just in their opinion.

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

#378

Post by marcosdumay » Tue, Mar 21, 2017, 8:58 PM UTC

harryh wrote: post #375

dragonwriter wrote: post #374

Earlier quoted context omitted.

No, they are being asked to transform a collection of documents they possess, using information they allegedly possess in their mind about those documents, and deliver the product of that transformation.

That's a characterization I can agree with. But that transformation still isn't, in my mind, testimony. It's an action.

How can disclosing some data that is a function of information you have on your mind not be testimony?

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

#379

Post by harryh » Tue, Mar 21, 2017, 9:05 PM UTC

marcosdumay wrote: post #378

harryh wrote: post #375

Earlier quoted context omitted.

That's a characterization I can agree with. But that transformation still isn't, in my mind, testimony. It's an action.

How can disclosing some data that is a function of information you have on your mind not be testimony?

Because it isn't revealing information that only exists in your mind. Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture.

An evil government could coerce someone to falsely say "I did it!"

An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence. Because if it's false that evidence simply won't exist.

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

#380

Post by dragonwriter » Tue, Mar 21, 2017, 9:18 PM UTC

harryh wrote: post #379

marcosdumay wrote: post #378

Earlier quoted context omitted.

How can disclosing some data that is a function of information you have on your mind not be testimony?

Because it isn't revealing information that only exists in your mind. Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture. An evil government could coerce someone to falsely say "I did it!" An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence. Because…

> Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture.

Thats not the sole purpose of the self-incrimination protection (which is, also, far too focussed in it's protections to meaningfully effect that end, since historically false testimony coerced through torture was very often sought from people other than the person it was used against.)

> An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence.

Sure they can, or, rather, if they claim to know already what is on the drive and reject any decryption which does not match their claimed knowledge, they can punish someone for non-compliance until they either tire of punishment or the target somehow manages to produce a result that matches the expectations.