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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

#221

Post by c3534l »

rayiner wrote: post #188
lenkite wrote: 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’d also need to plant a sister who will testify that you showed her a bunch of child porn.

The question isn't if this particular man is guilty, it's if investigators and judges have the constitutional authority to sentence a person to life in prison because they think that a person remembers a password they say they don't remember.

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

#222

Post by harryh »

Clubber wrote: post #203
harryh wrote: post #165

Earlier quoted context omitted.

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.

Sorry, provide evidence from his mind was probably a better way of saying that.

Lots of evidence can come from your mind. The location of a document, the passcode on a safe.

What makes these things similar to an encryption key and different from other types of testimony is that they only unlock information that already exists outside of the witnesses's head so they aren't subject to the same prohibitions under the 5th amendment.

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

#223

Post by c3534l »

drostie wrote: post #169
canttestthis wrote: post #149

Earlier quoted context omitted.

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 asser…

He DID testify that he forgot his password.

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

#224

Post by Powerofmene »

Veratyr wrote: post #216
Powerofmene wrote: post #117

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…

The "forgone conclusion" argument makes no sense to me. If there's enough evidence that the conclusion is "forgone", what is there to gain by decrypting the contents?

The forgone conclusion is that evidence likely exists on the drives and as such the judge issued the Writ pursuant to the All Writs Act. But to prosecute someone in a court of law it takes evidence, admissible evidence, and conclusions that it likely sits on an external hard drive is not in and of itself evidence of pornographic images of children.

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

#225

Post by colejohnson66 »

300bps wrote: post #218
rayiner wrote: post #188

Earlier quoted context omitted.

They’d also need to plant a sister who will testify that you showed her a bunch of child porn.

The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn on the encrypted hard disk. The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?

Precedent

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

#226

Post by colejohnson66 »

ajross wrote: post #185
Powerofmene wrote: post #173

Earlier quoted context omitted.

Or maybe he is a firm believer that there is no faster way to erode our constitutional protections than to voluntarily surrender them. Or maybe he believes that damn pesky constitution (sarcasm) applies to everyone including the government when it comes to search and seizure, and to himself when it comes to right to due process of law, and the protection against self incrimination to name just a few. Or maybe there i…

Maybe. But let's be honest here: there's CP on that drive. This is a good case for spinning around on HN arguing about the extent of the bill of rights protections in the face of creative application of the All Writs Act. It's a terrible one for actually defending the perp. I mean, come on.

The Miranda in your Miranda Rights wasn’t exactly an upstanding citizen either

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

#227

Post by harryh »

300bps wrote: post #218
rayiner wrote: post #188

Earlier quoted context omitted.

They’d also need to plant a sister who will testify that you showed her a bunch of child porn.

The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn on the encrypted hard disk. The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?

You have misunderstood what "foregone conclusion" means in this case. It is not a foregone conclusion that this is child porn on the disks. It is a foregone conclusion that there is something on the disks and that something is encrypted with a password known by the defendant.

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

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

#228

Post by Clubber »

harryh wrote: post #222
Clubber wrote: post #203

Earlier quoted context omitted.

Sorry, provide evidence from his mind was probably a better way of saying that.

Lots of evidence can come from your mind. The location of a document, the passcode on a safe. What makes these things similar to an encryption key and different from other types of testimony is that they only unlock information that already exists outside of the witnesses's head so they aren't subject to the same prohibitions under the 5th amendment.

The compelling of revealing a safe's combination is protected in prior cases (I liked on earlier in this thread but I'll quote it again)

We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. … We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.”

Of course, the Supreme Court hasn't ruled on it as far as I know, but it's an interesting case. I'd like the SCOTUS to rule on it.

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

#229

Post by cabaalis »

geofft wrote: post #59
cabaalis wrote: post #46

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…

A password is information that you "know" not something you "have." I believe that giving a password is testifying information. This appears to be the sticking point. He is being locked up for refusing to say the equivalent of a word that would be information used against him. To me, that is being locked up for refusing to testify. Locking up for refusing is compelling. Therefore he is being compelled to testify.

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

#230

Post by toast0 »

stinkytaco wrote: post #84
SolaceQuantum wrote: post #54

I think, importantly and regardless of the crime itself, I would like to ask: what can be done here and how did we get to this point? We have someone who has been in prison indefinitely who hasn't been charged with anything. What can be done about this situation even if we raise awareness? Also, how did we get to the point where this is legal?

I think this is not the hill you want to die on. Everything points to this guy being guilty and the court of public perception would not be on your side. Though it does seem possible that they are using this case to set a precedent for future, less clear-cut cases.

The problem with not choosing this hill is that the hills that need defending are exactly the ones you wouldn't choose. If this guy didn't appear to be in the wrong, the government wouldn't spend their time trying to unlawfully compel him to decrypt the drive.

If white supremacists had something nice to say, people wouldn't want the government to unlawfully silence them.

It doesn't feel good to protect the rights of suspected child pornographers, or white supremacists; but consider that we don't want a government empowered to unlawfully persecute those who do or say things we find morally repugnant because what the majority finds morally repugnant changes over time, but fundamental rights shouldn't.

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