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TrueCrypt User Held in Contempt of Court

forums.truecrypt.org

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Re: TrueCrypt User Held in Contempt of Court

#161

Post by cafebabe »

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…

This is how the law was interpreted in this special case (which is plain wrong in my view). It is not only about the testimony. It is about helping the prosecution to build a case which you as the acused do not have to - not in preparation for the case, not in the court itself. In court everything you say becomes a testimony. In each stage, you have the right to remain silent if you are the acused.

The real problem here is how a judge / prosecutor thinks about digital data as 'property'. If they have possession of the encrypted data, it is up to them how to use it as evidence to build a case or to judge it. You have not to do anything to help them with that as the acused.

Re: TrueCrypt User Held in Contempt of Court

#162

Post by rdl »

Aloisius wrote: post #34

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.

I'd also be much more likely to forget passwords (for real) after being locked up in jail (stressful and away from computer, so not logging in periodically). I think at the point of forgetting, the contempt charge would go away.

Re: TrueCrypt User Held in Contempt of Court

#163

Post by yllus »

jordan0day wrote: post #37
yllus wrote: post #27

Earlier quoted context omitted.

You are correct. That does not however change the observation that an explanation of his charges is conspicuously absent.

So far, it's not clear at this point this guy has actually been charged with any criminal wrongdoing. From what I've seen on the forum, here, and reddit, there doesn't appear to be a criminal charge reported. It's entirely possible that he is being held in contempt due to some civil case. What you're trying to do here is obvious, and I don't like it one bit. Everyone is innocent until proven guilty. You're trying to…

I am doing no such thing - shame on you for making assumptions about another's intentions.

The fact of the matter is that even if the first sentence of his message stated that he was being held on child pornography charges, I would still back his right to not have to reveal his key. That's ridiculously lazy policing.

However, the omission of what his charges are from such a thorough message is extremely conspicuous. I could pretend to be a string parsing robot and only act on what the message itself contained... Or I could use my full brain like a human and make some reasonable assumptions. He's probably been accused of something pretty bad to leave it out like he did.

It's funny that in then contest to appear dispassionate and just people, even in an intelligent community such as this, handicap themselves. We're not better for having done so.

Re: TrueCrypt User Held in Contempt of Court

#164

Post by encoderer »

Duff wrote: post #124
marshray wrote: post #114

Earlier quoted context omitted.

But it wasn't evidence when you encrypted it, right?

Typically, you are in trouble when you destroy evidence when you has reasonable cause to believe that it is evidence. If I delete all of my email today, I'm not committing a crime. But if I find out that my company is being sued for breach of a contract that I was working on, deleting email becomes suspicious.

My attorney has advised me that the best thing in this situation is to have a personal data retention policy: "I delete my email the first monday of every month."

Then, do just that.

If a civil or criminal case is brought against you the law says you must stop any routine houskeeping tasks like that to preserve evidence, but the most you'd have then is 4 weeks worth. Much better than 4 years.

Re: TrueCrypt User Held in Contempt of Court

#165

Post by awakeasleep »

yaix wrote: post #146
sorbus wrote: post #129

Earlier quoted context omitted.

You generally give them the non-hidden volume password, not the hidden volume password. This is because, unless you tell them so (or they see you using it, or have spyware on your system, etc.), there is absolutely no way to prove the existence of a hidden volume from looking at the file. There's also no way to prove that a truecrypt file does not contain a hidden volume, which leads to some interesting problems if p…

Actually, there are ways to prove a hidden volume indirectly. For example by the file names you opened or the last modification date of a truecrypt container file. There is an article about all the small things to watch on the Truecrypt website.

My small modification:

>There is an article about all the small things to watch on the Truecrypt website.

There is an article about all the tricky things to watch for. They're not any smaller than any other booleans on your system, and with software like encase, such inconsistencies will be found.

Re: TrueCrypt User Held in Contempt of Court

#166

Post by tomjen3 »

aaronblohowiak wrote: post #70
checker wrote: post #43

Earlier quoted context omitted.

Aren't there statutes against forced self-incrimination by the court? I am definitely not a lawyer.

That exists to prevent the state from coercing a wrongful confession out of you. Compelling the truth out of you has no such moral hazard. I am not a constitutional scholar.

As is often the case with constitutional protections, the protection is a result of the English monarchy's abuse of power. In this case it is to prevent another star chamber[http://en.wikipedia.org/wiki/Star_Chamber] where "Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses."

The fifth protect you from having to compel a statement, since you can then be declared guilty for either: any invented crime you testify you did (if you testify as they want you to); perjury (if you testify, but not what they want you to say); contempt of court (if you refuse to testify).

Re: TrueCrypt User Held in Contempt of Court

#167

Post by nkassis »

saranagati wrote: post #93
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…

I find that problematic in a way. If in a murder case the defendent was given immunity for him to say the statement "the body is buried at xyz" would the corpse being found using that statement be used against him?

I can see this as still incriminating himself no?

Re: TrueCrypt User Held in Contempt of Court

#168

Post by fmx »

otterley wrote: post #149
ChuckMcM wrote: post #83

Earlier quoted context omitted.

True, and shredding a key would be no different than shredding evidence. You could be charged with destroying evidence but not the crime the evidence supported.

Under civil law, a finding that evidence was destroyed implies a finding of the fact that the destroyed evidence would have supported. I'm not sure how this would affect a criminal law proceeding, though I'm reasonably the prosecutor would be allowed to introduce that fact to prove guilt. (Ultimately it would be up to the jury to decide.)

How could the court know what fact it would have supported?

Re: TrueCrypt User Held in Contempt of Court

#169

Post by jules »

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?…

Wouldn't it be the same if you had child porn in your house?

Re: TrueCrypt User Held in Contempt of Court

#170

Post by mbreese »

gcb wrote: post #134
mbreese wrote: post #125

Earlier quoted context omitted.

No, you couldn't be compelled to translate a document in a foreign language. The police have another way to get the information - ask someone else who knows the language to do it. You would be making their job harder, but not impossible. In the case of an encryption key, you might be the only one that can assist the investigation. So you'd be hindering it. At least that's how I'd see it.

it may not even be a real language... you are distorting the point. I myself may not know how to read what is on the paper

If it isn't a real language, that's a whole other set of circumstances. If it is a foreign language that is actively spoken, and the police have a reasonable way to get the document in question translated, you should have to help them. However, if they don't have a reasonable way and you are the only one that can help, then you could be compelled to do so. It is a question of what's reasonable.
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