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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

#91

Post by throwaway17_17 »

rootusrootus wrote: post #85
joering2 wrote: post #69

Earlier quoted context omitted.

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.

Impeachment isn't a criminal trial.

While this is true, there is no dispositive ruling on the totality of criminal procedural law as it applies to impeachment. The 1936 impeachment of Judge Ritter was the first point a defendant in an impeachment trial appealed to a court to assert his procedural/constitutional rights had been denied by the Senate. It is clear there are procedural requirements the Senate must honor, but the full extent is not clearly defined. For a decent review of the area as it stood in 1993, prior to the Clinton trial, see [0].

0 —> https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi...

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

#92

Post by nwallin »

The idea of being locked up for not handing over a password terrifies me.

I was deployed a few years ago and living in the conexes. I was bored and decided to go all out on encrypting everything. I picked a completely random 16 character password (I piped the output from /Dev/urandom through some tr command that only allowed typeable characters through) and committed it to muscle memory. I used this laptop every day for about a month before I went home. I took about a one week vacation midway home.

With the break and change in surroundings I completely forgot the password. No idea what it was. I tried for about a week before I have up and reformated it. I don't encrypt my computer any more.

That's a crime they can lock you up for life for? Crazy talk.

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

#93

Post by ajross »

thatcat wrote: post #87
ajross wrote: post #68

Earlier quoted context omitted.

> 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…

To not encrypt your books for a business would be negligence; I assume you leave all your valuable information as clear text for the convenience of future investigations?

I wrote "is deliberately encrypting and refusing to provide access to those books obstruction?". And again, I don't think that argument is anywhere near as clear cut as you want it to be. The fifth amendment, again, is intended to prevent torture, not to prevent the collection of evidence in a criminal investigation.

So technicalities like you're invoking (is refusing to do something "obstruction" or not?) need to be balanced against technicalities on the other side (is providing a decryption key "testimony"?). And when courts have had to make decisions like this they've almost always done it by splitting the difference in some way instead of finding an absolute interpretation on one side or the other.

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

#94

Post by tedunangst »

Johnny555 wrote: post #78
acchow wrote: post #55

Earlier quoted context omitted.

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 forgo…

I suppose the judge will consider such factors as whether the drive is attached to your computer or shows signs of recent use. If your shell history shows you mounting the drive the day before arrest, that wouldn't play well.

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

#95

Post by amarshall »

topmonk wrote: post #84
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…

> This would seem to imply that if the government has ample evidence that you murdered someone, they can require you to admit to it in court. They can require you to tell them where the body is if you “encrypted” its location (i.e. buried it somewhere)

More that if they know you wrote down where the body is, they could require you to produce that piece of paper.

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

#96

Post by tedunangst »

zimbu668 wrote: post #82
anigbrowl wrote: post #77

Earlier quoted context omitted.

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

This explains why an innocent person should take the fifth: https://www.youtube.com/watch?v=d-7o9xYp7eE

Taking the fifth in a courtroom is rather different than not talking to police without a lawyer.

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

#97

Post by joering2 »

anigbrowl wrote: post #77
joering2 wrote: post #53

Earlier quoted context omitted.

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.

Because anything you say may be used AGAINST you in the court of law. Nothing you say can be used to help you.

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

#98

Post by arthurofcharn »

VectorLock wrote: post #62

What about if your password itself is an admission of committing a crime? Like your pass phrase is "IMurderedJeffreyEpstein"

"I can't, your honor, the password itself is a confession." Is now my newest password.

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

#99

Post by banana_smoothie »

tantalor wrote: post #80
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.

While true, this is also a much more modern problem than the authors of the US constitution were subject to.

If you stab people, you can wipe the blood off the knife. If you shoot someone, there was not a way to associate a projectile with a firearm. (Assuming the dubious merits of "firearm forensics".) Back in the good ol' 1780s, there's no presecutorial evidence to be gained by inspecting my safe because you cannot show that the knife/gun inside was the murder weapon.

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

#100

Post by donny2018 »

nwallin wrote: post #92

The idea of being locked up for not handing over a password terrifies me. I was deployed a few years ago and living in the conexes. I was bored and decided to go all out on encrypting everything. I picked a completely random 16 character password (I piped the output from /Dev/urandom through some tr command that only allowed typeable characters through) and committed it to muscle memory. I used this laptop every day…

My understanding is that if there is evidence that you were committing crimes with connection to this encrypted data, there is a problem for you. Otherwise, this is not a problem.
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