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DOJ: We can force you to decrypt that laptop

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Re: DOJ: We can force you to decrypt that laptop

#11

Post by djackson »

muuh-gnu wrote: post #9
djackson wrote: post #6

It's easy to see why you wouldn't want someone to decrypt your laptop. What about Bernie Madoff? Wouldn't you be furious if all data produced by a corrupt hedge fund manager was encrypted? Wouldn't you want the DOJ to be able to hold them in contempt of court? If you hamstring your government, you aren't allowed to complain that it is ineffective.

"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." -- H.L.Mencken

Yeah... no.

There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in some cases, the equivalent to denying a detective access to a crime scene. If all productions of electronic evidence can be encrypted, and the defense is not forced to decrypt those files, then dirty corporations only need to encrypt everything to defend themselves in court.

Defense: "We produced everything you asked for."

Prosecution: "We can't even verify that statement. Decrypt it"

Defense: "We don't have to."

Case closed.

Re: DOJ: We can force you to decrypt that laptop

#13

Post by DavidSJ »

roc wrote: post #5

The truly interesting bit, will be when a case of (real or alleged) multiple hidden encrypted volumes is publicized. If the government feels the information they want is on a laptop, the laptop's owner would suddenly find themselves forced to prove a negative (there are no more hidden volumes), lest they be held in contempt. If they can seemingly compel you to reveal something they can't proven even exists and lock y…

US v Hubbell makes clear that the government cannot compel production of documents (except under immunity to prosecution) which it does not know, ahead of time, to exist.

Re: DOJ: We can force you to decrypt that laptop

#14

Post by andrewcooke »

djackson wrote: post #11
muuh-gnu wrote: post #9

Earlier quoted context omitted.

"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." -- H.L.Mencken

Yeah... no. There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in some cases, the equivalent to denying a detective access to a crime scene. If all productions of electronic evidence can be encrypted, and the defense is not forced to decrypt those files, then dirty corporations only need to encrypt everything to defend themselves…

rights are rights because they allow you to do what would otherwise be illegal.

for example, there's no need for a right to free speech if you're only going to say things that everyone thinks should be said.

rights exist because some things are so important they are worth the cost of abuse.

At first blush it may be thought surprising that one should have a right to do that which one ought not. Is it not better to confine rights to that which it is right or at least permissible to do? But to say this is to misunderstand the nature of rights. One needs no right to be entitled to do the right thing. That it is right gives one all the title one needs. But one needs a right to be entitled to do that which one should not. It is an essential element of rights to action that they entitle one to do that which one should not. To say this is not, of course, to say that the purpose or justification of rights of action is to increase wrongdoing. Their purpose is to develop and protoect the autonomy of the agent. They entitle him to choose for himself rightly or wrongly. But they cannot do that unless they entitle him to choose wrongly. - Joseph Raz, The Authority of Law (p 266)

the final sentence of the quote above is hugely important.

Re: DOJ: We can force you to decrypt that laptop

#15

Post by djackson »

pielud wrote: post #10
djackson wrote: post #6

It's easy to see why you wouldn't want someone to decrypt your laptop. What about Bernie Madoff? Wouldn't you be furious if all data produced by a corrupt hedge fund manager was encrypted? Wouldn't you want the DOJ to be able to hold them in contempt of court? If you hamstring your government, you aren't allowed to complain that it is ineffective.

These protections extend to everyone, no matter how despicable. In order for good people to be free, some bad guys might also get away. Such is the price of a free society.

Do you think the government should have subpoena power in order to collect evidence? Do you think they should be able to search a murderer's home for the weapon? I'm not saying they should have this power without a warrant, but nobody has the protection from a _reasonable_ search.

Re: DOJ: We can force you to decrypt that laptop

#16

Post by tomjen3 »

djackson wrote: post #11
muuh-gnu wrote: post #9

Earlier quoted context omitted.

"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." -- H.L.Mencken

Yeah... no. There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in some cases, the equivalent to denying a detective access to a crime scene. If all productions of electronic evidence can be encrypted, and the defense is not forced to decrypt those files, then dirty corporations only need to encrypt everything to defend themselves…

At present, all you have to do is bury it in the woods.

Sorry your honor there were no incriminating papers found.

Re: DOJ: We can force you to decrypt that laptop

#17

Post by d0ne »

IANAL ( Edit to include a reference for my opinions[1] )

The general argument for forcing someone to turn over the key to a door once compelled by the court is that it is commonly known there are other reasonable means by which to access the content the door protects that do not require the key:

1) Locksmith 2) Break the door down 3) Use a different door if one exist

These are reasonable methods as neither of them take a considerable amount of time, in many cases a reasonably consistent amount of time between unique cases, and are methods that are readily available in all markets and jurisdictions. This makes the case that the contents behind the door can be accessed through various methods, some of which do not require my involvement, therefor my not turning over the key is only nominally delaying the inevitable.

In the case of an encryption key that protects data, which once protected is only in the possession of the individual who also posses the key, this is very different IMHO.

It is very different for this simple reason:

If proper procedures have been followed, and certain encryption methods have been utilized, there is no reasonably consistent method for acquiring the original data other than information I posses in my mind.

I say reasonably consistent because if you had limitless resources and limitless time you could try every possible combination and at some point gain access. That is, however, unless the mechanism that relays the encryption key is not designed in a way as to destroy the data after N failed attempts.

In either case, no court can be reasonably certain of the time it would take to access the original data or if they would ever gain access at all. This directly conflicts with my right to a speedy trial and certainly conflicts with my right not to incriminate myself as I'm the only one who can provide access within a reasonable amount of time.

[1] http://news.cnet.com/8301-13578_3-9834495-38.html

Re: DOJ: We can force you to decrypt that laptop

#18

Post by kenjackson »

roc wrote: post #5

The truly interesting bit, will be when a case of (real or alleged) multiple hidden encrypted volumes is publicized. If the government feels the information they want is on a laptop, the laptop's owner would suddenly find themselves forced to prove a negative (there are no more hidden volumes), lest they be held in contempt. If they can seemingly compel you to reveal something they can't proven even exists and lock y…

If the government feels the information they want is on a laptop, the laptop's owner would suddenly find themselves forced to prove a negative (there are no more hidden volumes), lest they be held in contempt.

I think it will still be a requirement for the gov't to show that there's cause. In the same way that the gov't can't hold you if they suspect you know where a kidnapped victim is held, unless they have evidence that you do know where they're at (it's similar in that you don't have to prove a negative, rather the police must show that there's reason to hold you).

So they must have evidence that suggests there is another volume.

Re: DOJ: We can force you to decrypt that laptop

#19

Post by bhousel »

naner wrote: post #12

What happens to her if she doesn't know the password?

An obstruction of justice charge, probably.

Here's a pretty decent page about the charge: http://www.federalcriminallawyer.us/2011/01/12/federal-law-o...

tl;dr: "18 USC 1503 is a felony offense for which the sentence can be 10 years imprisonment."

Re: DOJ: We can force you to decrypt that laptop

#20

Post by djackson »

andrewcooke wrote: post #14
djackson wrote: post #11

Earlier quoted context omitted.

Yeah... no. There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in some cases, the equivalent to denying a detective access to a crime scene. If all productions of electronic evidence can be encrypted, and the defense is not forced to decrypt those files, then dirty corporations only need to encrypt everything to defend themselves…

rights are rights because they allow you to do what would otherwise be illegal. for example, there's no need for a right to free speech if you're only going to say things that everyone thinks should be said. rights exist because some things are so important they are worth the cost of abuse. At first blush it may be thought surprising that one should have a right to do that which one ought not. Is it not better to con…

Nobody has the right to avoid a reasonable search in the United States. You are protected by the fourth amendment from unreasonable searches, but you aren't going to convince me that a detective has no right, with a warrant in hand, to search a suspect's home for a murder weapon.

Similarly, you aren't going to convince me that a prosecutor, warrant in hand, has no right to search a computer for evidence of credit card fraud.

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