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Fifth Amendment shields child porn suspect from decrypting hard drives

arstechnica.com

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Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#11

Post by corin_ »

cdjk wrote: post #9

This seems somewhat narrow, unfortunately. Suppose I have a laptop with an encrypted hard drive, and I'm known to use that laptop. It's going to be hard to convince someone that I don't own the laptop and drive, so it seems like the government could still compel me to decrypt it. Of course, this would protect me if I happen to have encrypted hard drives scattered randomly around, but that's not typically how one woul…

Obviously it comes down to the judge's judgement call (no pun intended) but based on this ruling there could perhaps be other ways to cause doubt which lead to this ruling, for example could you argue that your laptop has the ability for you to use it without unencrypting said drive, while potentially allowing one or more other people to use the encrypted part? Or if you are using encrypted files (e.g. TrueCrypt but not encrypting an entire drive) then having multiple encrypted files, perhaps even labelled in a way to suggest multiple users, such as stored in a folder called "Shared storage"?

Obviously all these things would need to look like they were genuine rather than thought-up for legal purposes, so I imagine if I ever ended up in this situation this comment might act against me... but as a non-American, the fifth is unlikely to be relevant anyway. On top of the fact that I currently have no encrypted drives.

Even without circumstantial suggestions that there are multiple options, I wonder if you could simply make the argument that possession of a single encrypted drive does not indicate usage of said drive, and therefore there is no reason to believe you have access to the encrypted contents?

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#12

Post by corin_ »

smoyer wrote: post #8
tomphoolery wrote: post #3

It's kinda weird that they took care to not mention his name in the article, but they say his last name in the quotes by the Judge.

The judges statements will already be in the public record, but I'm glad they're not mentioning his name prior to a conviction.

Tomphoolery's point was that his name was included in the Judge's statements quoted in this article, i.e. that even though they avoided using it in the text they wrote themselves, the article still included it.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#13

Post by corin_ »

smoyer wrote: post #7

This is one of those issues that leaves you arguing with yourself ... I'm 100% against child pornography (or really the exploitation of anyone), but 100% for rights to privacy, both digitally and in "in real life". We can only hope that if this suspect is guilty, they find evidence that can be obtained without violating his rights ... and of course if he's innocent, I hope he avoids the stigma being a suspect might b…

The problem from the stigma point of view is that, even if our better judgement is saying "stand up for your privacy rights, even if you have nothing to hide", our (or at least my) brain is also saying "if he was innocent he wouldn't have a problem un-encrypting the drive(s) for them".

That's in my head, despite the fact that I am well aware that he could be taking a moral stand, or he could have stuff on those drives which he doesn't want to be seen for reasons completely unrelated to child pornography (maybe photos of his mistress which his wife doesn't know about, maybe profit spreadsheets from his drug-dealing... etc.)

So if he is innocent, I imagine the stigma will be there regardless, assuming people hear about the case at least.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#14

Post by rayiner »

obviouslygreen wrote: post #2

This seems like the first time in quite a while someone's rights have been protected (as far as what's in the news goes, anyway). Unless the guy is convicted, he still has all of those pesky things -- regardless of how obvious his guilt may or may not be to anyone -- and it's a lot better for all of us if they're actually taken seriously once in a while.

What you don't see in the news is the zillions of times a day the system protects peoples' rights through criminal appeals, etc, and the massive overhead that arises from actual criminals abusing those protections in order to try and get out on technicalities.

My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.

You have to take what you see in the news in context of the reality of the people who work within the system every day. It is a system, after all, and systems involve balancing competing interests, but the tech media rarely tackles the complexities of that process.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#15

Post by rhizome »

rayiner wrote: post #14
obviouslygreen wrote: post #2

This seems like the first time in quite a while someone's rights have been protected (as far as what's in the news goes, anyway). Unless the guy is convicted, he still has all of those pesky things -- regardless of how obvious his guilt may or may not be to anyone -- and it's a lot better for all of us if they're actually taken seriously once in a while.

What you don't see in the news is the zillions of times a day the system protects peoples' rights through criminal appeals, etc, and the massive overhead that arises from actual criminals abusing those protections in order to try and get out on technicalities. My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing th…

Isn't the case in the story also one of "technicalities," since the police seem reasonably sure the material is on one of the drives, just not exactly which one?

People who clerk have a skewed view of the judicial system compared to someone who has been convicted.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#16

Post by [deleted] »

obviouslygreen wrote: post #2

This seems like the first time in quite a while someone's rights have been protected (as far as what's in the news goes, anyway). Unless the guy is convicted, he still has all of those pesky things -- regardless of how obvious his guilt may or may not be to anyone -- and it's a lot better for all of us if they're actually taken seriously once in a while.

[deleted]

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#17

Post by 6d0debc071 »

I wonder why people place themselves in a position where it's possible for them to decrypt the drives under coercion. If I wanted to secure something and I thought that I might be under coercion at any point, then I'd stick part of my key files on a system that would delete them if it didn't get the all clear, and have another part that I could destroy in an off hand manner - maybe by smashing a USB key with a hammer or burning a bit of paper with an QR code or something on it,.

"Unencrypt that." "No longer possible."

Whether I'd have backups somewhere, well, who knows. But it's certainly possible to imagine systems under which the likely actions of an attacker such as the police would render the files useless.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#18

Post by gnaritas »

rayiner wrote: post #14
obviouslygreen wrote: post #2

This seems like the first time in quite a while someone's rights have been protected (as far as what's in the news goes, anyway). Unless the guy is convicted, he still has all of those pesky things -- regardless of how obvious his guilt may or may not be to anyone -- and it's a lot better for all of us if they're actually taken seriously once in a while.

What you don't see in the news is the zillions of times a day the system protects peoples' rights through criminal appeals, etc, and the massive overhead that arises from actual criminals abusing those protections in order to try and get out on technicalities. My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing th…

> What you don't see in the news is the zillions of times a day the system protects peoples' rights through criminal appeals, etc, and the massive overhead that arises from actual criminals abusing those protections in order to try and get out on technicalities.

Good. Better criminals abuse the system than the system abuse people.

> My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.

I don't trust your friends view of clearly guilty, sounds like bias to me.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#19

Post by rhizome »

corin_ wrote: post #13
smoyer wrote: post #7

This is one of those issues that leaves you arguing with yourself ... I'm 100% against child pornography (or really the exploitation of anyone), but 100% for rights to privacy, both digitally and in "in real life". We can only hope that if this suspect is guilty, they find evidence that can be obtained without violating his rights ... and of course if he's innocent, I hope he avoids the stigma being a suspect might b…

The problem from the stigma point of view is that, even if our better judgement is saying "stand up for your privacy rights, even if you have nothing to hide", our (or at least my) brain is also saying "if he was innocent he wouldn't have a problem un-encrypting the drive(s) for them". That's in my head, despite the fact that I am well aware that he could be taking a moral stand, or he could have stuff on those drive…

The stigma comes from an attitude that the judicial system's responsibility is to produce convictions, so it appears that defendants who are not convicted are merely certainly-guilty people against whom the prosecution didn't have the tools necessary to convict. Down this path lies lowered standards for due process and evidence and a higher incidence of false positives.

Re: Fifth Amendment shields child porn suspect from decrypting hard drives

#20

Post by nothxbro »

Question-

I had a idea about how to make this type of punishment non feasible.

Replace the standard truecrypt bootloader with one of a design that has a 'self destruct'

What I mean by that is, when you turn on your computer and the boot loader is initialized it actually deletes its keyfile from disk and only keeps it in ram. If you dont enter the correct password in xxx minutes or if you restart the computer, that data is lost and restoring it becomes impossible.

There could be another option as well, a 'extra' unlock code that you could not prove the existence of, which could overwrite the deletion of the above.

Basically its a way to say "The FBI turned on my computer without asking me for instructions and destroyed my data- Its not possible for me to restore it, but this WAS my password"

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