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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

#31

Post by chacham15 »

gyardley wrote: post #28
6d0debc071 wrote: post #17

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…

Isn't destroying evidence obstruction of justice?

It depends on the intent. If you create the system explicitly to destroy evidence if the police are looking for it then yes. If, instead, you create a "safe" that as an anti-tamper measure destroys the contents, then no (BUT IANAL).

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

#32

Post by betterunix »

rayiner wrote: post #22
gnaritas wrote: post #18

Earlier quoted context omitted.

> 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…

> Good. Better criminals abuse the system than the system abuse people. That's a trope. In reality, the justice system is about striking a balance between the need to preserve order and security and the need to protect peoples' rights. That's why the Constitution uses "balance-y" words like "reasonable" when talking about 4th amendment rights. > I don't trust your friends view of clearly guilty, sounds like bias to m…

Except that we are talking about 5th amendment rights, which are not about striking a balance. The 5th amendment does not use compromise words, it is very clear:

"No person shall be...compelled in any criminal case to be a witness against himself..."

Nothing in there about being "reasonable" or about being "clearly guilty." The 5th amendment makes exactly one exception, which applies only to the military, only during a time of war or danger to the public, and has nothing to do with self-incriminating.

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

#33

Post by rayiner »

betterunix wrote: post #32
rayiner wrote: post #22

Earlier quoted context omitted.

> Good. Better criminals abuse the system than the system abuse people. That's a trope. In reality, the justice system is about striking a balance between the need to preserve order and security and the need to protect peoples' rights. That's why the Constitution uses "balance-y" words like "reasonable" when talking about 4th amendment rights. > I don't trust your friends view of clearly guilty, sounds like bias to m…

Except that we are talking about 5th amendment rights, which are not about striking a balance. The 5th amendment does not use compromise words, it is very clear: "No person shall be...compelled in any criminal case to be a witness against himself..." Nothing in there about being "reasonable" or about being "clearly guilty." The 5th amendment makes exactly one exception, which applies only to the military, only during…

First, I'm not talking about this case specifically, but rather responding to the top level poster's general comment about peoples' rights being protected.

Second, even in the absence of wiggle words, there is the issue of how broadly to interpret the protection. Read literally, the text only prohibits "compelling" a person "to be a witness against himself" (i.e. a compelled confession admissible into evidence). Extending the protection more broadly than that is an act of judicial balancing.

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

#34

Post by betterunix »

rayiner wrote: post #24
rhizome wrote: post #15

Earlier quoted context omitted.

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.

> People who clerk have a skewed view of the judicial system compared to someone who has been convicted. I'd argue it's a much less biased view that incorporates more and better information.

I am pretty sure clerks are seeing only a fraction of the people who were arrested or convicted, and that that fraction is strongly biased towards people who have money to spend on lawyers. The overwhelming majority of the millions of prisoners we have in America never had a trial.

I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.

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

#35

Post by gizmo686 »

dkulchenko wrote: post #21

Say, for the sake of argument, that I have an external SSD with 5 partitions, 2 of which are filled with random data (passing a chi-square test), the remaining 3 are TrueCrypt volumes. The way I understand it, I have plausible deniability that I have any encrypted data on this disk. Failing that, wouldn't being forced to divulge which of the partitions are actual encrypted volumes be self-incrimination?

You have plausible deniability for any single disk (assuming their is no info leak through other channels, (and possibly technicalities with TrueCrypt). However, you will have a difficult time claiming that they are all random, especially because you would be set up to run TrueCrypt.

The best approach I have heard is to have 2 TrueCrypt volumes, but claim you only have 1. You still have to be careful about data leaks, and making your 'one' look convincing.

Also, yes, you cannot be forced to give them your decryption keys.

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

#36

Post by hnriot »

rayiner wrote: post #22
gnaritas wrote: post #18

Earlier quoted context omitted.

> 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…

> Good. Better criminals abuse the system than the system abuse people. That's a trope. In reality, the justice system is about striking a balance between the need to preserve order and security and the need to protect peoples' rights. That's why the Constitution uses "balance-y" words like "reasonable" when talking about 4th amendment rights. > I don't trust your friends view of clearly guilty, sounds like bias to m…

what a dangerous precedent you are setting, PD friends acting as judge and jury.

Laws change, and there are often subtleties to a law that make rash statements made by some PD friend with likely no more than a GED about "clear guilt" absurd. Even the simplest of laws aren't clear when looked at in detail.

This is why we have advocates with specific knowledge in these areas, and why judges hear briefs explaining the nuances of law, as it applies to a case. There just is no such thing as "clearly guilty"

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

#37

Post by zizee »

dkulchenko wrote: post #21

Say, for the sake of argument, that I have an external SSD with 5 partitions, 2 of which are filled with random data (passing a chi-square test), the remaining 3 are TrueCrypt volumes. The way I understand it, I have plausible deniability that I have any encrypted data on this disk. Failing that, wouldn't being forced to divulge which of the partitions are actual encrypted volumes be self-incrimination?

The issue with that idea is that you have to be 100% confident that Trucrypt does not leave behind artifacts that point to the non-dummy partitions, including things like "recently accessed documents" or indices created by the OS to speed up document/file searching.

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

#38

Post by gte910h »

nothxbro wrote: post #20

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 da…

They take the computer and mirror the drive. This doesn't help

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

#39

Post by hnriot »

ethanbond wrote: post #30
dkulchenko wrote: post #21

Say, for the sake of argument, that I have an external SSD with 5 partitions, 2 of which are filled with random data (passing a chi-square test), the remaining 3 are TrueCrypt volumes. The way I understand it, I have plausible deniability that I have any encrypted data on this disk. Failing that, wouldn't being forced to divulge which of the partitions are actual encrypted volumes be self-incrimination?

You don't have to decrypt anything no matter what. You can't be compelled to give up the key.

... unless you're in guantanamo bay

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

#40

Post by gizmo686 »

nothxbro wrote: post #20

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 da…

As shitlord mentioned, this is a mistake waiting to happen, (although a random USB/CD somewhere with a copy of the key could resolve that issue). The bigger problem is that I doubt the FBI are that stupid. My guess is they clone the harddrive before doing anything on it.

Even on a 'normal' computer, there is likely minimal benifit to booting normally as a first step; because you will likely run into an OS password. The simplest thing (I guess) is that they routinely remove the HD, clone it, and look at it on another computer, then probably remove the user password and boot it to see what the user would see.

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