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Court rules that people can't be locked up indefinitely for refusing to decrypt

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Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#51

Earlier quoted context omitted.

They can't require you to personally admit to it, but if they know about a notebook where you wrote it they can require you to give up the notebook. (The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.)

The GP's point was that, if the bar for the 5th amendment is that you may be required to provide testify against yourself as long as the government already knows the piece you are required to testify about, it's not clear how that wouldn't apply to you being required to admit your guilt when the government has sufficient evidence that you are guilty. I'd also note that giving the government your books is required by…

Generally speaking, any non-testimonial evidence entered into court must be backed by a witness testifying to the nature, content (e.g. literally reciting the incriminating parts), and origins of the evidence. And that person has to have had a proper relationship to the evidence to do so, which is usually the person with the most direct and close relationship to an item or act. For example, if you want to enter verbal statements into evidence, the best and proper person to testify to them is usually the person who made the statement, not a listener.

Another way to look at it is that the only real evidence in court is witness testimony; everything else is just window dressing. Thus we have the Fifth Amendment: "[no person] shall be compelled in any criminal case to be a witness against himself."

How does that get turned into a rule that a defendant can't be forced to divulge information outside court? Because to be admissible in court such information would normally require the defendant to be a witness. If it's not admissible then there's no legitimate basis for the state to compel an act. That leads to two corollaries: 1) if the person isn't a defendant, or is given immunity, he would never be required to be a witness against himself (just a witness against someone else), and thus the Fifth Amendment isn't implicated; 2) if the evidence obtained from the information would be admissible without the defendant's testimony, the Fifth Amendment likewise isn't implicated.

#2 is the case here. Because the government can already show ownership of the hard drives through other witness testimony (e.g. testimony of a relative, purchase receipts, etc), it would be categorically unnecessary for the defendant to testify in court to the incriminating act of divulging the password. However, if for some reason it later turned out that the government couldn't show ownership independently, then of course the hard drives would be inadmissible; not because of the forced password disclosure, per se, but simply because the defendant himself couldn't be compelled to be a witness to his act of divulging the password--an investigator couldn't testify that the defendant disclosed the password as that would be hearsay.[1] But such a turnaround is rare as a court won't compel disclosure unless it's clear there's ample independent and admissible evidence of ownership.

[1] There are lots of exclusions and exceptions to hearsay, especially regarding defendant admissions, but they're disallowed if they would effectively nullify the spirit of the Fifth Amendment if permitted for compelled acts. If you're a strict textualist, as most conservative-leaning people believe themselves to be, then one would presumably be okay with permitting those exceptions, particularly those exceptions which existed at the time of ratification of the Fifth Amendment.

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#52
post #25

Earlier quoted context omitted.

They don't have to prove that you remember the passphrases. They just have to show that the encrypted devices/partitions/whatever were in your custody at the time of encryption. Then you have to (a) show why you weren't the one to encrypt the devices or (b) make a 5th Amendment argument about why you don't have to turn over the encryption key during which time you may be incarcerated. "I forgot" is generally not a va…

> "I forgot" is generally not a valid defense. The number of times that people invoke "I don't recall" while giving testimony under oath says otherwise.

We're talking about two very different things.

And for the record, a defendant claiming "they forgot" something within their control is valid circumstantial evidence of guilt or responsibility.

When claimed by the police or prosecution witness, it's just as much valid evidence against guilt, and has been used many times to get defendants off.

Basically, it's valid circumstantial evidence against the party/side that makes the claim of forgetfulness.

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#53

Earlier quoted context omitted.

> Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course…

They can't require you to personally admit to it, but if they know about a notebook where you wrote it they can require you to give up the notebook. (The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.)

Which of course is not how justice works, at least in USA. Here you are innocent until proven otherwise. Mere decline to produce a notebook (with or without evidence of crime in it) is in no way shape or form an admission of guilt or a proof of itself good enough to find you guilty. Look no further than the most important case of modern history - impeachment of Donald J. Trump. During Senate hearing Mr. Trump’s lawyers argued how important it is to forbid judges and juries from finding someone guilty merely on fact they invoked their fifth ammandment right. At the end Mr. Trump was acquitted in part based on this defense. And what’s good for a President of the country that is a beacon of justice and freedom, cannot be less good for an average Joe Doe.

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#54

A minor miracle, while Chelsea Manning still rots in Alexandria City Jail for not cooperating with the political persecution of Assange.

It's so great, that Obama "commuted her sentence". Clearly that was a meaningful action that significantly affected something.

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#55
post #7

> The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives…

It's complicated - the guy claimed he forgot his password. So what does the law do at that point?

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#56
There's a certain irony in the coincidence of the defendant's name being "Rawls", who was a political philosopher [0] that sought to define what "justice" should be within political society...

his work "Justice as Fairness" "describes a society of free citizens holding equal basic rights and cooperating within an egalitarian economic system."

[0] https://plato.stanford.edu/entries/rawls/

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#58
post #57
post #43

so they can keep you 4 years if they have nothing on you? > Man Who Refused To Decrypt Hard Drives Is Free After Four Years In Jail

18 months is the new limit. It only applies to federal courts though.

it is still wayyyyyyyyyyyy too long.

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#59
post #4

Idea: write malware that drops random data/encrypted files on the infected devices drive but is otherwise harmless, distribute widely. Bam! Plausible deniability for everyone.

We sort of already have this, since stegfs provides an existence proof:

https://en.m.wikipedia.org/wiki/StegFS

Re: Court rules that people can't be locked up indefinitely for refusing to decrypt

#60
The problem with this new territory is exactly the unsettled issue of whether providing a password is testimonial and protected.

The protection against self-incrimination is/was a protection against being put on trial and being forced to say or give testimony that you took part in or committed a crime. It is not a protection against any and all evidence from being produced against you.

In a previous age, not saying words was enough protection, because evidence was usually physical (objects). The novel problem now is that the types of evidence being protected by passwords (and the method of protection) now are so closely linked that it's quite difficult to say whether being compelled to reveal a password is testimonial.

Suppose a suspect murdered someone and was seen putting the weapon in a safe, where the combination was known to be written in a person's private papers. Those papers could be compelled to be revealed without jeopardizing privilege because the discovery of the combination is not forcing a person to testify. Even compelling the person to reveal the combination might not be testimony. And in any case, the safe could be opened with much effort and a blowtorch.

But now, the safe can never be cracked, and the person's knowledge of the password is the only thing that will open it. The person revealing the password will surely confirm his/her guilt, so it now feels very much like the info/knowledge is self-incriminating testimony.

Modern problems. They need some court resolution at a high level.

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