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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

#171

Post by 1000units »

throwaway17_17 wrote: post #72
1000units wrote: post #22

Earlier quoted context omitted.

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…

I carry an open disdain for lawyers and their equivocal notion of "argument". You understood me; my language and its assertion are sound.

You don't want to go into any of those reasons people waive a jury, right?

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

#172

Post by gamblor956 »

sjy wrote: post #111
gamblor956 wrote: post #19

Earlier quoted context omitted.

No, they can hold you in contempt for up to 18 months in federal court, or indefinitely in many state courts. OTOH, if you were to argue that it's not your device, or that you weren't the person that encrypted it, that's a very different situation.

This is incorrect. You can’t be held in contempt for failing to comply with an order you can’t comply with, for example due to a loss of memory. In this case the court did not believe that the defendant had forgotten the key.

Whether you actually have lost your memory is a factual question to be determined by a trier of fact. Generally, most triers of fact rule against the forgettor if forgetting benefits them.

OTOH, if a witness forgets, they would not be held in court, because there's no benefit to them forgetting, and so their loss of memory is believable.

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

#173

Post by 1000units »

incompatible wrote: post #36
LanceH wrote: post #31

Earlier quoted context omitted.

When they start applying these standards to politicians, then I'll be ok with it trickling down the people.

It's really a different situation. The ruling party is basically above the law in the US, thanks to presidential pardons and control of the impeachment process.

You're halfway to an important insight, but your partisanism is blinding.

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

#174

Post by gamblor956 »

pbecotte wrote: post #73
gamblor956 wrote: post #21

Earlier quoted context omitted.

(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 tria…

Is indefinite detention without even a criminal charge a valid punishment for that?

The defendant was charged with child pornography offenses.

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.

The defendant was claiming to forget the encryption key to a device because it allegedly contained a massive trove of photos that would likely get him locked away in prison for life. Said device was one he had owned and used for years, including shortly before he was arrested and the device confiscated (based on testimony of his sister). It's not reasonable to believe that he just conveniently forgot his encryption key as soon as he was arrested, especially when forgetting the key was beneficial to him in the underlying proceeding.

However, it is very easy to imagine a situation where someone LEGITIMATELY cannot decrypt the device.

Yes, but this isn't that situation. And this ruling benefits that hypothetical person.

this decision cannot go the way the prosecutor wants it to.

We agree on that, but it didn't need to. The prosecution already had a strong case against him on the underlying criminal charges. They got what they wanted -- a deterrent to others trying to do the same thing just to avoid jail time.

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

#175

Post by throwaway17_17 »

1000units wrote: post #171
throwaway17_17 wrote: post #72

Earlier quoted context omitted.

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…

I carry an open disdain for lawyers and their equivocal notion of "argument". You understood me; my language and its assertion are sound. You don't want to go into any of those reasons people waive a jury, right?

I can say for certain that some people waive a jury when the judge is known to more often than not find defendants not guilty of Distributing Controlled Substances and instead is likely to only convict on simple possession. I can say for certain that some people opt for a trial by judge when they know that said judge often finds prosecutor arguments based on co-conspirator testimony or testimony of snitches are not reliable. Like I said, there are many reasons a defendant may opt away from having a jury trial. Also, I don’t see how your disdain for lawyers is relevant to the concept of a judge vs jury trial.

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

#176

Post by slipheen »

VectorLock wrote: post #62

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

In the past, they've offered to exclude the contents of the password from the trial to answer that.

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

#177

Post by anigbrowl »

joering2 wrote: post #97
anigbrowl wrote: post #77

Earlier quoted context omitted.

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.

It was a little underhanded of me to write that without quotation marks, but the words I posted above were famously uttered by the current President in 2016, when criticizing someone else for relying on the 5th amendment. My point is that his idea of justice is actually extremely variable depending on what benefits him at any given time.

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

#178

Post by anigbrowl »

pdonis wrote: post #166
anigbrowl wrote: post #77

Earlier quoted context omitted.

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

> If you're innocent, why are you taking the Fifth Amendment? Because innocent people do get wrongly convicted. If you don't want to be that innocent person, you might have to assert your rights, including your Fifth Amendment rights. Note that the Fifth Amendment does not say that you can't be forced to incriminate yourself, as many TV courtroom dramas wrongly imply. Statements like "the mob takes the Fifth" are bas…

Thanks for taking time to answer properly, and I agree wholeheartedly.

My post was above was a bit naughty, as I was quoting the current president (in response to a post discussing his recent impeachment) without revealing that it was a quotation.

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

#179

Post by pas »

Johnny555 wrote: post #165
pas wrote: post #136

Earlier quoted context omitted.

I think all of these are taken into account. The defendant is usually given opportunity to just type the password to decrypt the drive. Usually only passwords are assumed to be remembered that are used many times with no sign of changing it. Still, the defendant can claim that the whole ordeal of arrest and trial took a serious toll on his/her memory. Of course the judge might or might not believe it.

I don't think you've ever worked at a corporate help desk -- people do forget passwords, even ones they've used for months - they'll swear up and down that the AD server is wrong. I once helped a professor decrypt a zip file by brute forcing the password (it was only 6 characters long). He swore it was his wife's name and that the file must be corrupt because he surely knows how to type her name. Turned out that it w…

I did, I forgot passwords that were long and complex too. I forgot new passwords regularly after thinking okay, now I got it.

I'm just claiming that this is how courts operate, not that it's the best thing ever and that it's infallible.

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

#180

Post by murftown »

As others have mentioned a lot of this boils down to the wording of the 5th amendment. Specifically: "...nor shall be compelled in any criminal case to be a witness against himself...".

I recently found out that, for example, the Texas Bill of Rights [1] has stronger wording that addresses this. From section 10: "...He shall not be compelled to give evidence against himself...".

1. https://statutes.capitol.texas.gov/SOTWDocs/CN/htm/CN.1.htm

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