Court rules that people can't be locked up indefinitely for refusing to decrypt • Hacker News Board

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

#71

Post by bobthepanda » Thu, Feb 13, 2020, 2:56 AM UTC

baddox wrote: post #46

SpicyLemonZest wrote: post #29

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.)

> it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books. I'm pretty sure it's relatively simple for police to break into offices and take financial records. I would imagine it happens relatively often, because simply asking a suspect to give up their books seems more likely to result in them attempting to hide or destroy their books. The reason police and prosecutors don't like e…

> I'm pretty sure it's relatively simple for police to break into offices and take financial records. I would imagine it happens relatively often, because simply asking a suspect to give up their books seems more likely to result in them attempting to hide or destroy their books.

No, this requires a warrant in the US for it to be lawfully used as evidence.

It's worth noting that the defendant in question was told to unencrypt the devices by the courts, which is pretty much in effect the same thing as a warrant, so it's not as if the government was torturing him to decrypt the data; the court had already decided it was material evidence in a case.

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

#72

Post by throwaway17_17 » Thu, Feb 13, 2020, 2:58 AM UTC

1000units wrote: post #22

nordsieck wrote: post #18

Earlier quoted context omitted.

> "I encrypted the device but don't have the key" isn't a defense to being compelled to decrypt the device? Try to think about it from the court's point of view. The truth could be: A. You legitimately forgot. B. You're lying. I know which one Occam's Razor favors.

A. You're innocent. B. You're guilty. Uh, this is the essential question to begin with. The judge doesn't decide this unless you're in clown court.

Guilt or innocence is a question of fact, in the US court system. It is a determination that is left to the ‘trier of facts’ that can be a judge or a jury depending on defendant choice and statutory law for each particular jurisdiction. There are many defendants who choose to have a ‘trial by judge’ and waive a jury. It happens often and it happens for many reasons, and those facts make your assertion about a ‘clown court’ wrong.

I do understand the meaning and most likely intent of your post, but the language used is less effective than it could be.

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

#73

Post by pbecotte » Thu, Feb 13, 2020, 3:04 AM UTC

gamblor956 wrote: post #21

1000units wrote: post #16

Earlier quoted context omitted.

(1) is obviously true. Nobody can dispute this in good faith, even if the jurisprudence is hard to settle among bad actors. Prosecutors are simply upset technology makes the 5th powerful. (2) is obviously false. You can't get to it without testimony, though, so too bad. This is the intention of the 5th. The court avoided the 5th Amendment issues because, again, the courts are a joke.

(1) is not obviously true. Even judges known to favor defendant's rights can't agree whether this would constitute a testimonial act. Claiming otherwise suggests that you don't understand how the law works, how the technology works, or both. (2) is not obviously false, because you're conflating two separate things: the encryption key and the contents of the encrypted device. Using the analogy of a locked safe: a pict…

I dunno what the law says. However, it is very easy to imagine a situation where someone LEGITIMATELY cannot decrypt the device. Is indefinite detention without even a criminal charge a valid punishment for that? We can make analogies all day "is it testimony? Is it like the code to a safe?"... But there is a real concrete fact that the government wants to be able to imprison someone indefinitely, without a jury trial, for claiming not to know something when there is certainly a reasonable doubt about them knowing it.

So, whatever they have to do with the analogies, this decision cannot go the way the prosecutor wants it to.

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

#74

Post by wahern » Thu, Feb 13, 2020, 3:05 AM UTC

throwaway17_17 wrote: post #65

wahern wrote: post #51

Earlier quoted context omitted.

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 verba…

I have a very strong suspicion that most of the Circuit courts are not going to follow this analysis. Based on the continual erosion of individual applicability of the 4-6 amendments, I would say the more like argument and opinions will focus on distinguishing these types of cases (forced decryption) from testimonial precedent. They will then proceed to, or try to, align the context with the clearly allowable compell…

Maybe I'm misunderstanding you, but my analysis justifies the legitimacy of forced disclosure, at least in similar situations [EDIT: as I assumed]. And that's exactly why I agree with you that eventually the rule will be firmly established that forced disclosure of passwords is lawful.

I think some courts have been squeamish about forced disclosure, sometimes because they hold a more liberal interpretation of the Fifth Amendment that relies on broader principles, sometimes because the situation is often far more complex and uncertain (if not completely incomparable to the hypothetical context I relied on) and they rightly err on the side of protecting the defendant's rights.

In this [EDIT: hypothetical] case I believe this analysis is the correct one, not just because of the text but also the purpose and history of the Fifth Amendment. It's not the proper vehicle to push other principles and legal theories that would restrict such forced disclosure. I lean rather liberal when it comes to constitutional interpretation, but at the same time rights built on sand aren't rights you can rely on. The law in this area seems muddy and precarious precisely because the liberal narrative is too incoherent. (Note: The liberal narrative in this case--that forced disclosure of a password is categorically barred, notwithstanding the intricacies of the rules of evidence--isn't politically partisan. Thus my subtle dig at contemporary conservative constitutional interpretation, which is often incoherent itself.)

EDIT: To be clear, in the case discussed in the article almost everything is more complicated than the simple hypothetical. I was responding at a point in this thread where the discussion already had become abstract.

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

#75

Post by Johnny555 » Thu, Feb 13, 2020, 3:12 AM UTC

SpicyLemonZest wrote: post #29

thaumasiotes wrote: post #20

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.)

but if they know about a notebook where you wrote it they can require you to give up the notebook

But if you wrote in a made-up language that only you know, can they force you to translate it?

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

#76

Post by jliptzin » Thu, Feb 13, 2020, 3:12 AM UTC

TacticalCoder wrote: post #40

gamblor956 wrote: post #14

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. Am I the only here who had to re-install Linux after x weeks or months of uptime because the LUKS password was forgotten? It happened to me more than once. How is it "generally not" (but sometimes yes?) a valid defense when it's a fact that people are losing their passwords? The internet is full of messages like: "I forgot my LUKS password but remember it had the name of…

Yea, makes no sense to me. I’ve forgotten many passwords for things I thought I’d never forget, including a bitcoin wallet. I can only imagine how hard it would be not using the password for months or years because law enforcement seized your device, and then having to produce it.

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

#77

Post by anigbrowl » Thu, Feb 13, 2020, 3:13 AM UTC

joering2 wrote: post #53

SpicyLemonZest wrote: post #29

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.)

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 lawye…

If you're innocent, why are you taking the Fifth Amendment? The mob takes the Fifth.

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

#78

Post by Johnny555 » Thu, Feb 13, 2020, 3:14 AM UTC

acchow wrote: post #55

ereyes01 wrote: 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?

That seems like a plausible excuse. Years ago I encrypted an email archive with what I thought was an easy to remember password. But I've forgotten the password. I remember some of the password so I wrote a password cracker to try variants of that, but I still can't get in.

If the feds seized my hard drive and wanted me to decrypt that file, can they lock me up until I give up the password even if I really have forgotten it?

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

#79

Post by asdfasgasdgasdg » Thu, Feb 13, 2020, 3:15 AM UTC

ereyes01 wrote: 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…

Also worth noting that the court appears to only be saying that he can't be locked up because the government likely doesn't need the evidence to convict him. That is the stipulation under which he is getting out of jail for contempt. If the government did actually need to compel that evidence to make their case, they would be able to hold him idefinitely. Or else at least this ruling doesn't say otherwise.

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

#80

Post by tantalor » Thu, Feb 13, 2020, 3:24 AM UTC

supernova87a wrote: post #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 w…

It's not a modern problem. You could always rig a tamper-proof device (eg booby trap) to destroy evidence if forced without the key.