Judge: Fifth Amendment doesn't protect encrypted hard drives • Hacker News Board

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#11

Post by talmand » Tue, Jan 24, 2012, 8:40 PM UTC

mc32 wrote: post #9

talmand wrote: post #6

Earlier quoted context omitted.

I can see the legal issues that would be forthcoming if you refused to share the key to allow for access or agree to type it in yourself. Obstruction and all that. I'm wondering what the legal ramifications might be if you set a secondary key that would wipe the drive in the most secure method possible and then provide that key. Or even the alternate boot sequence as suggested.

>I'm wondering what the legal ramifications might be if you set a secondary key that would wipe the drive Destruction of evidence. http://en.wikipedia.org/wiki/Spoliation_of_evidence

Oh, I get that, I'm not saying it's a way to avoid the ramifications, I'm just wondering what they are.

I have to say that I somewhat agree with the ruling because there are similar situations with physical objects, not true one-to-one but they are there. I'm just wondering how the courts would react to the destruction of digital evidence that was not directly initiated by the defendant, but indirectly by preparing for the possibility.

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#12

Post by fab13n » Tue, Jan 24, 2012, 8:43 PM UTC

To counter this, you need an encryption method with these properties:

- you can be banned or self-banned, irrevocably, from accessing your data;

- you can prove to the judge that you can't access your data;

- even with full forensic copies of your disk, you can't be un-banned.

You can do that by having part(s) of the key on server(s) online. Give yourself, a couple of trusted friends and optionally a script, the ability to wipe those keys: it will irrevocably seal your disk's content. Obviously, pick servers under foreign jurisdictions which dislike to collaborate.

Even better, there's no proof that you're the one who destroyed the keys: you can't be charged with evidence tempering.

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#13

Post by AndyKelley » Tue, Jan 24, 2012, 8:45 PM UTC

Did anybody see this?

But the police had recorded a phone call between Fricosu and her husband in which she seemed to acknowledge ownership of the laptop and to reference incriminating material on it.

I'd like more details about this - without any clarification, this sounds extremely scary.

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#14

Post by ge0rg » Tue, Jan 24, 2012, 8:46 PM UTC

sp332 wrote: post #7

ge0rg wrote: post #3

Earlier quoted context omitted.

Yes. The term for that is plausible deniability. It is implemented (probably among others) in truecrypt: http://www.truecrypt.org/docs/?s=plausible-deniability

Plausible deniability is a much larger concept than that. Also if they know you're using Truecrypt, the "deniability" of the existence of a 2nd (or 3rd or 4th) OS goes down significantly.

It does indeed. However, what are they going to do? Torture you until you give them the "other" password? How can they distinguish whether you just cleaned your hard drive or if you gave them the wrong key?

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#15

Post by grecy » Tue, Jan 24, 2012, 8:46 PM UTC

mikeash wrote: post #10

showerst wrote: post #5

Just out of curiosity, what's the case-law like if she had encoded these documents and stored them on paper? I certainly don't want to see mandatory decryption, but at the same time it doesn't make sense to let an accused completely skip out on discovery by simply truecrypt-ing the evidence either.

To me, the most convincing argument is, what if you legitimately forget your password? If that alone gets you thrown in jail, then you're going to be jailing a lot of innocent people. On the other hand, if that does not get you thrown in jail, then one can simply claim to have forgotten the password without repercussion. Personally, I'd rather let people hide evidence by encrypting it than jail people for being forge…

I agree 100%

I'm thinking about the case where a person never even knew the key to what they have. The example is a business laptop being carried through customs, that was encrypted by someone else, who will decrypt it upon your arrival (or something similar)

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#16

Post by mahyarm » Tue, Jan 24, 2012, 8:49 PM UTC

fab13n wrote: post #12

To counter this, you need an encryption method with these properties: - you can be banned or self-banned, irrevocably, from accessing your data; - you can prove to the judge that you can't access your data; - even with full forensic copies of your disk, you can't be un-banned. You can do that by having part(s) of the key on server(s) online. Give yourself, a couple of trusted friends and optionally a script, the abil…

Can someone else be charged with it? Will you have to go through a long court case with it?

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#17

Post by SamReidHughes » Tue, Jan 24, 2012, 8:49 PM UTC

fab13n wrote: post #12

To counter this, you need an encryption method with these properties: - you can be banned or self-banned, irrevocably, from accessing your data; - you can prove to the judge that you can't access your data; - even with full forensic copies of your disk, you can't be un-banned. You can do that by having part(s) of the key on server(s) online. Give yourself, a couple of trusted friends and optionally a script, the abil…

> Even better, there's no proof that you're the one who destroyed the keys: you can't be charged with evidence tempering.

How much do you want to bet?

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#18

Post by koenigdavidmj » Tue, Jan 24, 2012, 8:58 PM UTC

fab13n wrote: post #12

To counter this, you need an encryption method with these properties: - you can be banned or self-banned, irrevocably, from accessing your data; - you can prove to the judge that you can't access your data; - even with full forensic copies of your disk, you can't be un-banned. You can do that by having part(s) of the key on server(s) online. Give yourself, a couple of trusted friends and optionally a script, the abil…

Maybe add a dead man switch? If you don't log on every week, then destroy the server side of the key.

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#19

Post by gte910h » Tue, Jan 24, 2012, 8:59 PM UTC

fab13n wrote: post #12

To counter this, you need an encryption method with these properties: - you can be banned or self-banned, irrevocably, from accessing your data; - you can prove to the judge that you can't access your data; - even with full forensic copies of your disk, you can't be un-banned. You can do that by having part(s) of the key on server(s) online. Give yourself, a couple of trusted friends and optionally a script, the abil…

>Even better, there's no proof that you're the one who destroyed the keys: you can't be charged with evidence tempering.

The court doesn't really work this way. Just because you cross your fingers when you do something doesn't mean you aren't going to be charged with destruction of evidence.

Re: Judge: Fifth Amendment doesn't protect encrypted hard drives

#20

Post by gte910h » Tue, Jan 24, 2012, 9:01 PM UTC

sp332 wrote: post #7

ge0rg wrote: post #3

Earlier quoted context omitted.

Yes. The term for that is plausible deniability. It is implemented (probably among others) in truecrypt: http://www.truecrypt.org/docs/?s=plausible-deniability

Plausible deniability is a much larger concept than that. Also if they know you're using Truecrypt, the "deniability" of the existence of a 2nd (or 3rd or 4th) OS goes down significantly.

No it's doesn't.

Truecrypt ALSO does full disk encryption...which is a very very good security precaution corporations everywhere are implementing.