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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

#101

Post by ClumsyPilot »

tedunangst wrote: post #94
Johnny555 wrote: post #78

Earlier quoted context omitted.

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.

To lock up people forever for such things is to me unthinkable. There is no established responsibility to remember you password, or keep it safe. Memory failures are not very predictable

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

#102

Post by ClumsyPilot »

donny2018 wrote: post #100
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.

Evidence which could be spurious, arising of actions of an unrelated third party.

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

#103

Post by thatcat »

ajross wrote: post #93
thatcat wrote: post #87

Earlier quoted context omitted.

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…

Oh, after the fact? I would agree that is definitely obstruction. Before the fact - maybe for business, but not for personal. 5th amendment is to protect against forcing someone to provide evidence against themselves whether that is through torture or coercion, it does not matter.

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

#104

Post by xeromal »

manfredo wrote: post #83
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.)

> 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 equivalen…

What if you don't give up your books that you're legally required to keep? What happens? How did they get them?

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

#105

Post by sjy »

manfredo wrote: post #83
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.)

> 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 equivalen…

> And how can the police prove you wrong if you say you forgot where you placed it?

By producing other evidence that suggests that you’re lying (eg. metadata or witnesses suggesting that you recently entered the correct password). In this case the judge had to reject Rawls’ claim of lost memory in order to find him in contempt. Maybe the judge’s finding of fact was wrong, but that’s not what the case is about now.

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

#106

Post by ajross »

thatcat wrote: post #103
ajross wrote: post #93

Earlier quoted context omitted.

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…

Oh, after the fact? I would agree that is definitely obstruction. Before the fact - maybe for business, but not for personal. 5th amendment is to protect against forcing someone to provide evidence against themselves whether that is through torture or coercion, it does not matter.

But again you face the technicality: is providing access to already-existing documents "testimony" in the sense the fifth amendment intends? You can't torture someone into producing documents that don't exist, obviously! Nor is going to jail for obstruction of justice "coercion", effectively by definition.

I'm not saying I disagree with you in principle, I'm saying that very reasonable courts might not. This isn't a cut and dry argument, at all.

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

#107

Post by chii »

ClumsyPilot wrote: post #101
tedunangst wrote: post #94

Earlier quoted context omitted.

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.

To lock up people forever for such things is to me unthinkable. There is no established responsibility to remember you password, or keep it safe. Memory failures are not very predictable

The law often uses the "reasonable person" as a standard to measure such responsibilities. So would it make sense for a reasonable person to forget a password they typed in only yesterday (and/or perhaps many times before)?

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

#108

Post by sjy »

wahern wrote: post #51
tsimionescu wrote: post #39

Earlier quoted context omitted.

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 verba…

This doesn’t sound right to me. As you point out, admissions are an exception to the hearsay rule. They are routinely admitted as evidence in cases where the defendant later retracts the admission and pleads not guilty. There is no Fifth Amendment violation or calling of the defendant as a witness for the prosecution.

I have never seen any authority for the view that the Fifth Amendment was intended literally to prevent the accused from being called as a prosecution witness at trial, as opposed to creating a general privilege against self-incrimination. For example, in Brown v. Walker (1896) [1], an early Fifth Amendment case, the Supreme Court said:

> the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which, in England, was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.

[1]: https://supreme.justia.com/cases/federal/us/161/591/

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

#109

Post by sjy »

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?

The court decides whether that is true or not, just like when you kill someone but claim you were acting in self-defence.

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

#110

Post by sjy »

ClumsyPilot wrote: post #101
tedunangst wrote: post #94

Earlier quoted context omitted.

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.

To lock up people forever for such things is to me unthinkable. There is no established responsibility to remember you password, or keep it safe. Memory failures are not very predictable

It’s not contempt if you forget the password, but saying you forgot doesn’t mean the judge has to believe you.
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