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Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

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Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#161

Earlier quoted context omitted.

So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is the bad guy, until they come for them.

But they are not asking him to testify, admit guilt, or anything like that. They aren't even asking him to tell them the password, just to enter the password to decrypt. This is more like expecting access to your house when a search warrant is provided. EDIT: To be clear, it's not that I feel he should necessarily be compelled, but rather that a fifth amendment defense is weak in this case, since it's not a testimony…

> They aren't even asking him to tell them the password, just to enter the password to decrypt.

How are you distinguishing one from the other? What makes compelling someone to speak the password aloud different from compelling them to type it with a keyboard?

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#162

Earlier quoted context omitted.

> What if he no longer possess them? He could have deleted them. If that's the case he should give the FBI the key. That way he'll prove he wasn't possessing child pornography.

No, he might have files on the drive which would incriminate him in some other crime. He should not be forced to incriminate himself.

That's exactly what I believe: there are files there that will incriminate him in committing those acts himself. I find it hard to argue he should be left alone, but I suppose that's just a gut reaction?

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#163

When the FBI used the All Writs Act against Apple to attempt to force Apple to bypass the password functions of an iPhone or develop a backdoor method of access, the courts ruled that decryption was not a violation of the Fifth Amendment "if the contents were a foregone conclusion." So if "foregone conclusion" is the criteria that must be met, I have to ask how the contents of this man's external hard drive could be…

> What if he no longer possess them? He could have deleted them. If that's the case he should give the FBI the key. That way he'll prove he wasn't possessing child pornography.

Or maybe he is trying to stand his ground and preserve his right to privacy or as I said previously, maybe there is some totally unrelated crime that unlocking the external hard drive would expose.

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#164
post #49

So the police no longer need to plant drugs. They can just plant encrypted hard drives to which you have 'forgotten' the password. Hard-drives containing hashes of 'bad' pics. And then you can spend your life in jail (unless you plead guilty) ?

They could simply claim that the free space in your hard drive is an encrypted hard partition

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#165
post #78
post #74

Earlier quoted context omitted.

This is a reasonable analogy too, but that does not help (me at least) to understand the position of the judge and prosecution. Deciphering the letter would mean he writes down the cleartext version, or reads it out aloud or something like that, which could much more obviously be argued as "being witness against himself". Their position is that this is exactly NOT what they are trying to force him to do, so the fifth…

I agree. When we think of it as a cyphered letter, it is more clear to me that the government is compelling him to incriminate himself. So instead of collecting evidence, they are forcing him to provide evidence, which to me is a clear 5th amendment violation. When we use the safe analogy, well safes are easy to open, no big deal. The government opens them all the time. Why is that such a huge leap? Using the incorre…

Forcing someone to provide evidence is not a 5th amendment violation. Law enforcement can require that a person hand over all sorts of evidence: documents, physical artifacts, even a person's own blood.

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#166

Earlier quoted context omitted.

Storing hashes of unencrypted files, would that allow FileVault to verify it was decrypted without error?

The correct order is hash then encrypt, exactly so you can't do that. Now I don't know if FileVault is doing this correctly, but hopefully it does. Edit: So two people have downvoted me without explanation. Is what I'm saying wrong?

You could also hash, encrypt, then hash again if you wanted extra integrity without decrypting. This is technically done with HTTPS through the TCP hash.

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#167
post #59

Earlier quoted context omitted.

So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is the bad guy, until they come for them.

It doesn't override the Constitution, though. He's not compelled to testify against himself. In a pre-computer society, we'd understand the Fifth Amendment as allowing you not to testify to your crimes, but not allowing you to refuse the police the right to search your house with a court-signed warrant, simply because you keep incriminating things in the house. It might exploit a loophole, though (and I also think th…

> The one thing that's different with computers is that usually the police can just break into your house (or a safe, or something like that) if you refuse to give them the key, and encrypted drives have no other alternate route in. So you wouldn't be kept in prison indefinitely for refusing to comply with a warrant; you'd just get your door knocked down.

This isn't really new with computers. People have been writing in code since time immemorial. What would have happened two hundred years ago if some defendant had been using a book cipher and the police don't know which page of which book is the key?

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#168

There's a better article in Ars: https://arstechnica.com/tech-policy/2017/03/man-jailed-indef... From that article: > The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother s…

Well, it is also bullshit to require the subject of an investigation to assist in their own investigation. I don't care what the laws says - it's wrong.

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#169

Earlier quoted context omitted.

If they're going to do that, they might as well just leave the pictures unencrypted. I don't see how encrypting it and then going through all these gymnastics in court helps them; in fact doing that seems like a good way to draw unnecessary attention to the frame job.

No because then he gets convicted and sentenced for a definite amount of time. Leave the hard drive encrypted and he's in jail indefinitely.

I mean, he could have testified at the contempt hearing or presented any sort of evidence that he just plain forgot the password, and the court might have heard that. He opted to not testify or introduce any testimony at this hearing. So that court hearing did not seriously consider memory failure because the defendant did not seriously assert it.

(Of course if he was lying about the failure of his memory, that assertion might have gotten him into more hot water -- it would potentially be a perjury charge. But we should not say definitely "he was lying when he said that to police" but just "he didn't make that case for himself at court," if I'm reading these court documents right.)

Just to give the relevant excerpts, the supplemental order that the judge issued to explain his reason for the contempt order states that he's using a well-established legal framework for figuring out memory-failure type contempt cases, quoting one of those cases directly as:

> A civil contempt proceeding on a witness' asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie[1] showing of contempt; i.e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. If the witness fails to meet this "burden of producing evidence," the government's prima facie case is sufficient to meet its burden of proof for a finding of contempt. The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question. Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply.

Note that testifying "I don't remember the password" is enough to activate part two. The supplemental order then goes on to apply this in the only obvious way,

> [first, ] the Government's prima facie case of contempt was largely, if not entirely, uncontested ... [second, ] at the September 30th Contempt Hearing, Mr. Rawls did not testify or call any witnesses, he did not offer any documentary or physical evidence into the record, and the only evidence he elicited was in the form of cross-examination of the Government's witnesses. Crucially, Mr. Rawls offered no on-the-record explanation for his present failure to comply with the August 27th Order... [therefore, ] in light of the Government satisfying its burden of proof, the Court adjudged Mr. Rawls to be in civil contempt of court.

[1] prima facie is a phrase which one might not be familiar with unless one has a philosophy or legal background; it means "at first glance" -- i.e. the government's showing might at a deeper stage be questioned but it has to "look like" contempt in order to start the process.

Re: Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

#170

Earlier quoted context omitted.

No, he might have files on the drive which would incriminate him in some other crime. He should not be forced to incriminate himself.

That's exactly what I believe: there are files there that will incriminate him in committing those acts himself. I find it hard to argue he should be left alone, but I suppose that's just a gut reaction?

While this may be true, the government has asked the court to order him to decrypt it as they search for those images. If they are after a bigger network of people sharing these images, then they should say so and grant him immunity or work out some type of deal with him.

As I said earlier I am not taking a position on whether what he did was right or wrong or on the moral aspects of the subject matter but here in the US the government must have a warrant to search electronic devices and that warrant must name the material they are seeking. If they list images related to child pornography, child molestation, etc they cannot go looking for evidence of drug dealing per se. But let's assume they find evidence of drug dealing, do you not think they will simply broaden the scope of their investigation and go looking in every corner of s life to now prove something they previously were unaware of before they hypothetically gain access to the drive.

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