What if you testified that you forgot the password (if password was used). Unbelievable it might seem, let’s say you set up the passwd 1 week before the deed, it is a possibility and IMO they would have to prove otherwise (+ good luck with the decrypting)
Court rules that people can't be locked up indefinitely for refusing to decrypt
141–150 of 180 posts
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#142The 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…
> seen putting the weapon in a safe, where the combination was known to be written in a person's private papers
Replace combination by password. Your example still works. If evidence is "locked" on an encrypted storage device and the password is in unencrypted plaintext form, it can be still used to "crack" the encryption without effort.
But could you force the suspect to tell you the safe combination in your example ?
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#143Earlier quoted context omitted.
In Germany is rule is simply that you are not required to do anything to actively help our own prosecution. They want to take your fingerprints? You don't need to help by lifting your arm. They want you to open a safe? No need to tell them the combination, through they will crack it open if you refuse. Same with encryption keys, you don't need to say anything. Telling the truth? As the accused you're allowed to lie i…
> As the accused you're allowed to lie in court however you want. Really? I'm interested to know how this works, and how it is not perjury.
Lying is not illegal. Lying under oath is illegal. In Germany, judges rarely require witness to swear under oath.
There also aren't juries in Germany.
There also isn't cross-examination in Germany.
The English way of law isn't the only way.
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#144> 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…
but its private speech or so it can be argued that way and that is in fact protected by the US Constitution as we can say stuff in private that we may not be allowed in public spaces public speech.
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#145Earlier quoted context omitted.
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.
The jury is still out on that one. In the meantime, she is being illegally held.
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#146How can they prove that the person didn't forget the password / no longer has access to it?
I'm pretty careful with that stuff but still it happened to me before.
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#147Earlier quoted context omitted.
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.
That’s quite a different problem, because if the booby trap goes off, the person who set it can’t be compelled to un-destroy the evidence.
Not entirely if you account for secure elements which might erase the secretif the wrong pin was entered too many times or if an wipe code was entered.
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#148Earlier 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.)
This is encryption we are talking about. The government is asking the suspect to find one key in a vast key space. So the actual question would be; can the government force the suspect to find the notebook for them if the only thing the government can prove is that the notebook exists some place where the suspect has deliberately hidden it?
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#149Earlier quoted context omitted.
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)?
I once forgot a 4 digit pin code I had used hundreds of time. It was scary, I thought I was going insane. I had to have it reset. (What I think happened is that I inverted two of the digits.)
Re: Court rules that people can't be locked up indefinitely for refusing to decrypt
#150Earlier quoted context omitted.
No, it's not more like making you open a safe. Telling someone the encryption key is being compelled to act as a witness against yourself, which the 5th amendment provides protection against (if used).
No it's not. The information you provide (the password) is not admitted as evidence in the trial. It's more like being compelled to act as a confidential informant against yourself. There's no prospect of this being used to bring about a wrongful conviction through coercing a confession.
If the key is not evidence then how can they prove that they got the incriminating files from the encrypted drive?