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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

#101

Post by feralchimp »

I'm a government-should-leave-reasonable-people-the-hell-alone libertarian and a crypto-is-the-shit kind of guy. I also think warrants for searches of encrypted media are totally legit, and think the hair splitting over "typing in the password without anyone seeing it" vs. "being compelled to dictate the password" is completely pointless.

1. Not every vocal Utterance qualifies as Testimony, and the only person who gets to self-identify with an encryption key is Whitfield Diffie, and that rule only applies after 3 bong hits -OR- when he's doing Salvia with Ron Rivest as his sitter. Your weasel card-skimming ass ain't no Whitfield Diffie.

2. If you leak enough inculpatory evidence outside your encrypted hard drive, such that the police are now holding a warrant for searching inside your encrypted hard drive, the jig is up, son! Shouldn't have leaked all that other guilt-stench, and should have plausibly-deniably deleted that evidence.

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

#102

Post by jpol »

sdkmvx wrote: post #86
IgorPartola wrote: post #77

Earlier quoted context omitted.

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…

> This is no different when they have a warrant for files (papers, information) on your encrypted drive (safe) and are asking you to open it by whatever means. This seems acceptable if they have a warrant for the contents of your safe. If they had a warrant for "evidence" and no knowledge or reason to believe that it was in the safe, could they open it/force you to open it simply because you own the safe. Similarly,…

Criminal contempt would have to be proven beyond a reasonable doubt, and the elements of proving the defendant's failure to provide the encryption key would include (1) showing that the key exists and (2) showing that they key is in the defendant's possession.

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

#103

Post by NyxWulf »

lawnchair_larry wrote: post #92
jwhitlark wrote: post #38

Earlier quoted context omitted.

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…

In support of the notion that Under a microscope, everyone is a criminal I'll add this data point.

The police raided the house of a veteran here in town a few months back for possession of small amounts of marijuana. The veteran opened fire and during the ensuing shoot out one officer died and five more were sent to the hospital. The news continuously talked about this veterans limited criminal history.

Ultimately he had a speeding ticket and had been charged with something like jay walking which was dismissed. That was his limited criminal history.

I completely agree that if you look at someone close enough, almost all will have limited criminal histories.

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

#104

Post by jpol »

philfreo wrote: post #96
learc83 wrote: post #64

Earlier quoted context omitted.

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?

U.S. v. Hubbell, citing U.S. v. Doe.

For these reasons, we cannot accept the Government's submission that respondent's immunity did not preclude its derivative use of the produced documents because its "possession of the documents [was] the fruit only of a simple physical act-the act of producing the documents." Id., at 29. It was unquestionably necessary for respondent to make extensive use of "the contents of his own mind" in identifying the hundreds of documents responsive to the requests in the subpoena. See Curcio v. United States, 354 U. S. 118, 128 (1957); Doe v. United States, 487 U. S., at 210. The assembly of those documents was like telling an inquisitor the COMBINATION TO A WALL SAFE, not like being forced to surrender the key to a strongbox. Id., at 210, n. 9.

http://supreme.justia.com/cases/federal/us/530/27/case.html

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

#105

Post by jpol »

ComputerGuru wrote: post #94
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.

Imprisonment for civil contempt can be of unlimited duration, but the purpose of it is to force you to give up the information. Once you have been in jail long enough for the judge to realize that imprisoning you won't change your mind, you will be released. That could be a very long time.

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

#106

Post by newbusox »

eurleif wrote: post #84
newbusox wrote: post #80

Earlier quoted context omitted.

The jurisprudence in this area has to evolve. In a house, for example, the police might be able to search your house because they have a warrant, or they might be able to search your house because of any other exception to the warrant requirement. In all of those cases, police can only search for discrete things--as in, they probably couldn't turn over your bed, unless they thought someone was hiding under it, or the…

If we build laws around files and folders, I can't wait to see what happens when filesystem design changes and there's no such thing as a 'folder' anymore.

Right, well that underlies the exact problem--things change faster that law makers and/or the jurisprudence can accommodate to.

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

#107

Post by hippich »

Once again - either providing password, or entering it without revealing password itself is a self-incrimination simply because this way you prove you are owner of this information.

Why this is important? It might be not yours information but you might know password. And this will make you incriminating yourself.

And most important, no matter what, right to not incriminate yourself should be remain untouched. Otherwise, nothing protects people from its government.

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

#108

Post by learc83 »

philfreo wrote: post #96
learc83 wrote: post #64

Earlier quoted context omitted.

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?

>The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox. Id., at 210, n. 9. The Government’s anemic view of respondent’s act of production as a mere physical act that is principally non-testimonial in character and can be entirely divorced from its “implicit” testimonial aspect so as to constitute a “legitimate, wholly independent source” (as required by Kastigar) for the documents produced simply fails to account for these realities.

http://www.law.cornell.edu/supct/html/99-166.ZO.html

They're not actually talking about a combination lock, but using that as an example of something that would be covered by the fifth amendment.

Basically, merely forcing one to reveal that one possesses the password can be regarded as self incriminating.

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

#109

Post by trotsky »

IgorPartola wrote: post #74
nirvana wrote: post #60

I wonder about this: What if the key to the encryption is written on a dozen seemingly random notes on yellow sticky notes in your office full of yellow sticky notes? Or, it is composed of the last letter on each page of a series of innocuous looking documents, such that the government might seize the documents but naturally in the process of doing so, scramble the documents order rendering the password irretrievable…

Sure. You could do even better: keep your computer on at all times and keep everything you do in RAM. No encryption is necessary here, just a $100 UPS and your laptop's own battery. The problem with all these comments about "what if I give half of my phrase to a friend?" or "what if I write it in the dust at the entrance to my house and the FBI wipes it away when they bust in?" is that it doesn't really address the c…

For what it's worth, it's very common for forensics teams to get memory dumps before the computers are turned off or moved.

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

#110

Post by learc83 »

ComputerGuru wrote: post #94
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.

Longest jail term for contempt was 14 years for a man who said he lost $2.75 million, and therefore couldn't give anything to his wife.

http://abcnews.go.com/2020/story?id=8101209&page=1#.Tx4s...

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