TrueCrypt User Held in Contempt of Court • Hacker News Board

Re: TrueCrypt User Held in Contempt of Court

#91

Post by johnrob » Fri, Jun 24, 2011, 11:30 PM UTC

runningdogx wrote: post #84

ChuckMcM wrote: post #79

First, there isn't enough information to know what it is this person has (or has not) done. Secondly, the fifth amendment of the US Constitution allows you to refuse to provide testimony which you feel may incriminate you. Generally encryption pass phrases do not count as testimony, the legal system treats them as keys. And that would be covered under the fourth amendment which says the government cannot compel to yo…

What if your passphrase to your truecrypt container (let's say it contains, for the purpose of this thought experiment, child pornography) is the true statement: "I am [for this thought experiment] a child pornography collector." Wouldn't it be a violation of the 5th amendment to be compelled to provide that passphrase, because it is an admission against interest and therefore would be admissible if you disclosed it?…

The 5th amendment doesn't mean you can block normal legal proceedings just because they would happen to incriminate you.

You do have the right to remain silent, however. That might be a stronger defense.

Re: TrueCrypt User Held in Contempt of Court

#92

Post by noblethrasher » Fri, Jun 24, 2011, 11:31 PM UTC

runningdogx wrote: post #84

ChuckMcM wrote: post #79

First, there isn't enough information to know what it is this person has (or has not) done. Secondly, the fifth amendment of the US Constitution allows you to refuse to provide testimony which you feel may incriminate you. Generally encryption pass phrases do not count as testimony, the legal system treats them as keys. And that would be covered under the fourth amendment which says the government cannot compel to yo…

What if your passphrase to your truecrypt container (let's say it contains, for the purpose of this thought experiment, child pornography) is the true statement: "I am [for this thought experiment] a child pornography collector." Wouldn't it be a violation of the 5th amendment to be compelled to provide that passphrase, because it is an admission against interest and therefore would be admissible if you disclosed it?…

Philosophically it's not a problem:

http://en.wikipedia.org/wiki/Use%E2%80%93mention_distinction

In the context of testimony, I'd argue (as a philosopher, not a lawyer) that a mention does not count as testimony and cannot be used against you. Obviously, an observation of the mention could lead the police to consider other avenues of investigation however.

Re: TrueCrypt User Held in Contempt of Court

#93

Post by saranagati » Fri, Jun 24, 2011, 11:41 PM UTC

ChuckMcM wrote: post #79

First, there isn't enough information to know what it is this person has (or has not) done. Secondly, the fifth amendment of the US Constitution allows you to refuse to provide testimony which you feel may incriminate you. Generally encryption pass phrases do not count as testimony, the legal system treats them as keys. And that would be covered under the fourth amendment which says the government cannot compel to yo…

an EFF lawyer talked about this at toorcon last year and said the exact opposite of what you just said. What she basically said was that you can plead the fifth to not give up the password however the court can give you amnesty for whatever you say (the key) can not be used against you. The content that is found on the hard drive using that key could still be used against you. Once the court gives you amnesty you can no longer plead the fifth and if you still refuse they can hold you for an indefinite amount of time.

Re: TrueCrypt User Held in Contempt of Court

#94

Post by etha » Fri, Jun 24, 2011, 11:43 PM UTC

johnrob wrote: post #91

runningdogx wrote: post #84

Earlier quoted context omitted.

What if your passphrase to your truecrypt container (let's say it contains, for the purpose of this thought experiment, child pornography) is the true statement: "I am [for this thought experiment] a child pornography collector." Wouldn't it be a violation of the 5th amendment to be compelled to provide that passphrase, because it is an admission against interest and therefore would be admissible if you disclosed it?…

The 5th amendment doesn't mean you can block normal legal proceedings just because they would happen to incriminate you. You do have the right to remain silent, however. That might be a stronger defense.

That only means you don't have to say anything to the police while you are in custody but have not yet been charged with a crime, and your lawyer is not present. It's not meant as a blanket protection against having to give testimony.

Re: TrueCrypt User Held in Contempt of Court

#95

Post by xijhing » Sat, Jun 25, 2011, 12:09 AM UTC

ChuckMcM wrote: post #79

First, there isn't enough information to know what it is this person has (or has not) done. Secondly, the fifth amendment of the US Constitution allows you to refuse to provide testimony which you feel may incriminate you. Generally encryption pass phrases do not count as testimony, the legal system treats them as keys. And that would be covered under the fourth amendment which says the government cannot compel to yo…

The fifth amendment defense was overturned in the Boucher case because: "A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination." [1]. Without Boucher having given up the names and titles of his files, it is entirely reasonable to expect that the fifth amendment would hold when testimony is asked without knowing what is inside the encrypted space.

[1] https://secure.wikimedia.org/wikipedia/en/wiki/United_States...

Re: TrueCrypt User Held in Contempt of Court

#96

Post by coreyja » Sat, Jun 25, 2011, 12:09 AM UTC

This may have been posted below as I did not read every comment but isn't impossible to prove that the file is a TrueCrypt volume to begin with? Couldn't you just claim it was a corrupt computer file that contained random data? How can they ask you for something that they have no proof even exists? There is no proof the file is a TrueCrypt volume so there is no way to prove there is even a password to find.

Re: TrueCrypt User Held in Contempt of Court

#97

Post by Canada » Sat, Jun 25, 2011, 12:13 AM UTC

etha wrote: post #94

johnrob wrote: post #91

Earlier quoted context omitted.

The 5th amendment doesn't mean you can block normal legal proceedings just because they would happen to incriminate you. You do have the right to remain silent, however. That might be a stronger defense.

That only means you don't have to say anything to the police while you are in custody but have not yet been charged with a crime, and your lawyer is not present. It's not meant as a blanket protection against having to give testimony.

Yes, it is in fact a blanket protection against having to give testimony.

Re: TrueCrypt User Held in Contempt of Court

#98

Post by Canada » Sat, Jun 25, 2011, 12:18 AM UTC

xelfer wrote: post #86

mahyarm wrote: post #75

Earlier quoted context omitted.

In truecrypt, the volume would report 2GB, not 512MB, and you have to be careful not to put in more than the invisible limit, otherwise the hidden portion will be corrupted/overwritten.

Truecrypt can have hidden volumes, the truecrypt file may be split into 1.5gb / 0.5gb. The truecrypt file reports 2GB, but different passwords mount different the different sized volumes, hence putting in the 512MB password will mount a 512MB volume of a 2GB file.

It works the way the parent says, not the way you say.

Re: TrueCrypt User Held in Contempt of Court

#99

Post by gst » Sat, Jun 25, 2011, 12:22 AM UTC

ChuckMcM wrote: post #79

First, there isn't enough information to know what it is this person has (or has not) done. Secondly, the fifth amendment of the US Constitution allows you to refuse to provide testimony which you feel may incriminate you. Generally encryption pass phrases do not count as testimony, the legal system treats them as keys. And that would be covered under the fourth amendment which says the government cannot compel to yo…

"If they do have probable cause, they get a warrant which gives them the power to do the search temporarily and only for what they think exists. So if you get a warrant to search your hard drive for something, you are compelled to give them the password just like you are compelled to let them into your house if they have a warrant to search for something like drugs or guns or counterfeit plush toys."

Does US law require me to open the door of my house to the police if they have a warrant?

In lots of countries a warrant allows the police to search your house, but it does not require your cooperation. You may not actively hinder the police from doing their task, but you, e.g., do not need to open the door.

Re: TrueCrypt User Held in Contempt of Court

#100

Post by wisty » Sat, Jun 25, 2011, 12:22 AM UTC

maratd wrote: post #80

jgmmo wrote: post #48

Earlier quoted context omitted.

It's called the Fifth Amendment. "nor shall be compelled in any criminal case to be a witness against himself"

The password that you are requested to provide to the court is not incriminating. There is no law against having passwords or using passwords. The Fifth Amendment doesn't apply. The incriminating part is the data on the drive ... and you are not being requested to testify ... it's there and has already been confiscated by the police using a legal warrant. This situation stinks, for sure. If you want to protect yourse…

"Questionable" is the key point here. We can't be sure if the defence holds water until it has been thoroughly tested in court.

As for shadow volumes, that's a whole other kettle of fish. I'm sure it won't be quite that simple - if your VLC history has a link to /shadow-volume/pirate_movie.avi then they may be able to compel you to decrypt it.