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Judge: Americans can be forced to decrypt their laptops

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Re: Judge: Americans can be forced to decrypt their laptops

#91

Post by geoffschmidt »

ryanwaggoner wrote: post #82

What if you made your passphrase itself a confession to a crime? "I shot the sheriff." Then you could claim that supplying your password would constitute self-incrimination, and so you'd like to invoke your 5th Amendment rights :)

Ceci n'est pas une pipe. Reasonable people are sophisticated enough to understand that there is a difference between using a sentence as a password, and believing that sentence to be true.

On a related note, I once looked into changing my middle name to an executable implementation of RSA, so that my passport would be a non-exportable munition. (No go.)

Re: Judge: Americans can be forced to decrypt their laptops

#92

Post by lawnchair_larry »

jwhitlark wrote: post #38
burgerbrain wrote: post #22

Earlier quoted context omitted.

I think it is quite a leap to assume that anything more than a minority don't have things like that.

That's not a leap at all. Many people don't have things like that, either for moral reasons, or there just don't care. Of the four computers I maintain for others, none of them has anything on your list. You can despise the MPAA without downloading movies. Just as you can desire privacy without committing any crimes.

Ever right-click, Save As on an image you didn't have the rights to?

Ever copied and pasted an article published by someone else, and saved it to a file?

During your online conversations, have you ever written something negative about another person?

Do you have any data that you are contractually obligated to keep a secret, possibly relating to agreements signed with employers or clients?

Note that even data in your browser cache can be used against you[1].

Under a microscope, everyone is a criminal.

[1] http://news.cnet.com/Police-blotter-Child-porn-in-Web-cache-...

Re: Judge: Americans can be forced to decrypt their laptops

#93

Post by korny »

gcr wrote: post #6
ChrisNorstrom wrote: post #3

The problem here is what are they going to find that ISN'T Illegal? Everyone has cracked software, pirated movies, & torrents. Then there's content that isn't illegal but very personal: chat logs, email archives, contact lists, usernames & passwords, FTP info, master passwords to everything, OH and my entire life's worth of inventions and ideas. I'm not saying they'd steal them but remember, we're talking about the A…

The fact that you have truecrypt installed on your start menu is a dead giveaway.

I use truecrypt to encrypt lots of legitimate stuff. All my financial data is on a truecrypt volume on DropBox. And I suspect that folks with something to hide wouldn't find it hard to hide trucrypt itself.

Re: Judge: Americans can be forced to decrypt their laptops

#94

Post by ComputerGuru »

jrockway wrote: post #79

"I forgot the key." Done. (Presumably serving an 18 month contempt sentence in a county jail is better than the 25-to-life in a maximum security federal prison you'd get if they saw the contents of your hard drive.)

If I'm not mistaken, there's no limit on contempt of court. A... stubborn judge could keep you detained until you're no longer in contempt.

Re: Judge: Americans can be forced to decrypt their laptops

#95

Post by ryanwaggoner »

ComputerGuru wrote: post #90
ryanwaggoner wrote: post #82

What if you made your passphrase itself a confession to a crime? "I shot the sheriff." Then you could claim that supplying your password would constitute self-incrimination, and so you'd like to invoke your 5th Amendment rights :)

It's not testimony. Even confessions can't be used against you if not given in the form of a testimony.

Source? Not trying to be snarky, just would like more details. What counts as testimony?

Re: Judge: Americans can be forced to decrypt their laptops

#96

Post by philfreo »

learc83 wrote: post #64
waiwai933 wrote: post #33

If I encrypt a letter by hand using, say, Caesar's cipher (despite how weak it is), could a court compel me (i.e. is there common law precedent in the US or elsewhere) to decrypt said letter? Surely there must be some precedent before we had computers and whatnot, right? This, after all, seems to be the closest-fitting analogy I can think of—both the "key to lock" and "privacy of mind" arguments seem to be stretching…

There is precedent that a court can't compel you give up the combination to a combination lock, because it would be considered testimony. Seems to me that this falls under that precedent.

Source?

Re: Judge: Americans can be forced to decrypt their laptops

#97

Post by geoffschmidt »

Let's look a little bit further down the road, say 100 or 200 years. If the computer is implanted in my head, can you compel me to give you the data in it? What if the computer is made partly of cells? Just how tightly integrated do I have to be with the storage device before it's part of the private, protected sphere of my personal consciousness?

I don't mean to be frivolous. As we become ever more dependent on cloud storage and mobile devices as extensions of our memories and our capabilities, we're eventually going to have revisit the legal boundaries of our personhood.

My communications with my attorney are subject to attorney-client privilege. It's almost like the attorney is considered to be a subprocess of me when he is thinking about my problems. We correctly see it as being in the public interest to allow me to communicate with my attorney without hindrance. Why shouldn't my communications with myself be given the same privilege?

Re: Judge: Americans can be forced to decrypt their laptops

#98

Post by lawnchair_larry »

geoffschmidt wrote: post #91
ryanwaggoner wrote: post #82

What if you made your passphrase itself a confession to a crime? "I shot the sheriff." Then you could claim that supplying your password would constitute self-incrimination, and so you'd like to invoke your 5th Amendment rights :)

Ceci n'est pas une pipe. Reasonable people are sophisticated enough to understand that there is a difference between using a sentence as a password, and believing that sentence to be true. On a related note, I once looked into changing my middle name to an executable implementation of RSA, so that my passport would be a non-exportable munition. (No go.)

What was their reason for declining the name change?

Re: Judge: Americans can be forced to decrypt their laptops

#99

Post by RexRollman »

"He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well."

I respectfully disagree, even if his opinion is correct under the law. A defendant should never, ever, be forced to assist in his own prosecution, and being forced to decrypt the drive would be doing exactly that.

Re: Judge: Americans can be forced to decrypt their laptops

#100

Post by jpol »

IgorPartola wrote: post #77
kinghajj wrote: post #53

Earlier quoted context omitted.

My understanding of existing case law regarding safes is that you can be compelled to give up a key, as it is just physical property to which the state has right to request, but can not be compelled to give a combination, as that is just memory and would violate the fifth amendment. Just because cryptographers use the term "key" doesn't mean the should be treated as real keys. It seems obvious that a key/paraphrase i…

You don't have to give up a key. They would be asking you to decrypt the drive. Whether that requires you to enter a passphrase or turn on the webcam and do a jig, it doesn't matter. They have no interest in your key/password/secret 4 digit code. They want the contents of the drive. Now they could be playing at a disadvantage, but the point is that the 5th amendment does not enter into here. If the police have a warr…

Shorter Version:

It does not matter whether the government forces you to do something (e.g. open a combination lock), as opposed to providing information (e.g. tell them the combination). The deciding factor is whether there is an invasion of your mental privacy inherent in the government compulsion. Whether you disclose the combination or open the lock yourself, the contents of your mind are being used to incriminate you, so your Fifth Amendment rights are being violated. This is distinct from the government demanding the key to a safe, or even taking a blood sample from you against your will, both of which are purely physical impositions.

===

Longer Version:

If the police have a warrant to search your documents, that does not mean that they can make you provide the documents to them. They can look through your stuff to find the documents, but if the police cannot read them, that is their problem.

However, a grand jury can subpoena documents from you, in which case you will be compelled to provide them. In this case, you can invoke the Fifth Amendment privilege against testimonial self incrimination as it relates to the production of documents. To the extent that the act of producing the documents requires you to use the contents of your mind, the act of production cannot be used to incriminate you. So, on one hand, your Fifth Amendment right will not protect you if the police already know that the documents exist and all of the information that is contained in them. However, if the police do not know exactly what documents they are looking for and what the documents say, then the information found in the documents cannot be used against you in court, nor can it be used to find other incriminating information.

See U.S. v. Hubbell, 530 U.S. 27 (Supreme Court case from 2000) http://supreme.justia.com/cases/federal/us/530/27/case.html

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