101–110 of 200 posts
Depending on what's on the drive, obstruction of justice might carry a much less onerous penalty than what he'd otherwise be facing. For instance, if it's child porn, he'd be labeled a sexual predator for life. If it's state secrets, he'd be facing treason and espionage charges. If it's mp3s.. financial ruin on top of the felony charge..
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 requ…
Its a good question, you are required to co-operate with the authorities in the lawful execution of their job. The term 'lawful' is, of course, subject to legal interpretation.
Police have arrested people for filming them arresting others, typically the scenario is "They ask the person filming to stop while they are doing their job, person doesn't, they arrest them for interfering with an officer." (sister-in-law is a public defender, I get to hear all the excuses). So far the California lower courts are still fumbling around this issue. I expect it to make it to the ninth circuit sometime later this year or early next year.
The question of "Can you make a house that the police can't search without your co-operation?" is a good one, and I'll ask my lawyer friends if that approach has been taken yet. Generally a subpoena is the court ordering you to co-operate and generally you must (or be held in contempt of court).
So I expect such cases would go "give us your hard drive" followed by "give us the key", followed by a refusal, followed by a subpoena, followed by another refusal, followed by being in jail for contempt.
If you did shred your key so that you literally cannot decrypt the drive, then I would expect you to spend a few days in jail (so that the prosecutor could prove to themselves you are serious) and then they would return your drive after re-formatting it. How they would justify that I do not know but I know that they would try.
I have encrypted files/volumes that I don't remember the password for (it has been far too long). Surely not remembering is a valid defense.
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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.
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Its a criminal case.,..which basically means if he judge requests a document that is encrypted on a hd than defendant cannot refuse or they are in contempt
And if the document does not in fact exist?
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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.
Granted, if we were working for the prosecutor we would be able to put 2 and 2 together ... but ... these are the same morons who just a few days ago grabbed an entire rack instead of one server, not being able to tell the difference.
You're giving them too much credit.
Anyway, as of right now, cops/prosecutor only get real excited if there's naked children involved ... and frankly, you shouldn't be doing that sort of shit anyway. Just jerk off to normal porn like everybody else, problem solved.
Until the 5th amendment and encryption issues get worked out, these drives should delete themselves upon unauthorized access.
Here's an interesting discussion on the matter from a few months ago: http://news.ycombinator.com/item?id=1762157 It seems that the primary contention here is whether a password constitutes physical evidence, which must be supplied upon the production of the correct edicts, or whether it constitutes "testimony", which I interpret to mean non-recorded ideation or mental processes. Supposedly the same argument could ap…
Can the defendant even be compelled to open a safe? Suppose you have a case in which the defendant has either specifically disclaimed ownership of the safe in question or disclaims any knowledge of the combination or has flatly refused to either confirm or deny ownership of the safe or knowledge of its combination on fifth amendment grounds. I'm no lawyer, but I suspect the standard procedure in such cases is that the judge issues a warrant that permits police to access the contents of the safe and no burden is placed on the defendant to do anything at all. Rather, because they have a warrant for the contents of the safe, the police are entitled to open it and they do just that, using a locksmith or mechanical means to force it open. The analogous situation with respect to encrypted data would be that the police are welcome to crack the encryption themselves by whatever means they deem appropriate, but the defendant isn't required to do their work for them.
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Its a criminal case.,..which basically means if he judge requests a document that is encrypted on a hd than defendant cannot refuse or they are in contempt
What if you forget the password?