81–90 of 180 posts
I wish people would stop linking to Tech Dirt, when there are alternatives ( https://arstechnica.com/tech-policy/2020/02/man-who-refused-... ). Tech Dirt is a self-proclaimed rumor mill site, similar to the The Sun.
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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.
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> 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.)
I don't think these two situations are the same. When you run a business there are legal requirements to retain data, and provide that data when audited. The police telling you to tell them were you placed a notebook doesn't seem like an equivalent situation. And how can the police prove you wrong if you say you forgot where you placed it? In fact this is what the defendant alleges:
> A judge ordered Rawls to decrypt the hard drives. In its recent ruling, the 3rd Circuit Court of Appeals described what happened next. Rawls "stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination."
https://arstechnica.com/tech-policy/2020/02/man-who-refused-...
> 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…
> 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 require you to tell them where the body is if you “encrypted” its location (i.e. buried it somewhere)
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As a semi-counter-point: 1) the argument, made by every criminal defense attorney in trial ever, that a jury can not infer anything from a defendant’s exercise of his/her 5th amendment right to remain silent is basically pointless. Juries, and individual jurors in the vast majority, do not buy it, they don’t accept it as the law in their minds, and they certainly factor it into deliberations; I in no way want the fol…
Politicans who found Mr. Trump not guilty have stated its in part because of lack of evidence otherwise. Everyone welcome to keep downvoting, but I will remain certain in USA you are innocent until proven guilty. You don’t have to prove your innocence. And many cases - even the big ones like Casey Anthony, OJ, Zimmerman, now Weinstein - prove that fifth amandment works.
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> 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…
> attempting to hide or destroy their books This is precisely why "Obstruction of Justice" is a criminal offense with severe penalties available. The question then becomes: is deliberately encrypting and refusing to provide access to those books obstruction? I know the folks here would argue otherwise, but IMHO it's not at all a clear argument legally. The original reasoning behind the fifth amendment was that withou…
Since email deletion policies aren't obstruction until you're told to suspend them, there's no way an encryption policy is obstruction.
> to be a literal get-out-of-jail-free card for crypto nuts
Pff. It's not like simply not writing things down is a get out of jail free card.
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> 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…
> attempting to hide or destroy their books This is precisely why "Obstruction of Justice" is a criminal offense with severe penalties available. The question then becomes: is deliberately encrypting and refusing to provide access to those books obstruction? I know the folks here would argue otherwise, but IMHO it's not at all a clear argument legally. The original reasoning behind the fifth amendment was that withou…
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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 Fif…
An unecessary personal detail: I wouldn’t describe myself as leaning liberal on constitutional interpretation (although all my Writs would lead one to assume I am firmly in favor of it), I certainly see myself as a die hard centrist in this area.
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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…
Hypothetically, he might have remembered his real password but the Government didn’t protect the bit-rot capable hard drive and it is the hard drive that is now bad. May be sector level checksums and probabilities rule them out but it is possible in the grand scheme of things
Edit: I guess this case actually answers that, to some extent. Before he said he forgot the password, he tried a couple for them.
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It's so great, that Obama "commuted her sentence". Clearly that was a meaningful action that significantly affected something.
He commuted her sentence for a different crime. He didn't give her a pass to commit contempt going forward.