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Judge: Fifth Amendment doesn't protect encrypted hard drives

arstechnica.com

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

#101

Post by dedward »

mikeash wrote: post #96
rayiner wrote: post #67

Earlier quoted context omitted.

You're creating a dichotomy that doesn't exist. What actually happens is that there is an intent element to crimes associated with destroying evidence. So you might get in trouble for purposefully destroying evidence, or in some cases negligently destroying evidence (e.g. a company that didn't have a proper data-retention policy). You usually can't get in trouble for accidentally destroying evidence. Then, you testif…

And what if the police just think the drive holds the bank codes for all the money I embezzled, but is actually an archive of amusing cat pictures I forgot the password to a year ago? Seems to me that the only way to reasonably apply "innocent until proven guilty" there is to only convict if they know what the encrypted contents are, and if they can already prove that beyond a reasonable doubt, why do they even need…

which means prosecutors will have supporting evidence that you have the info they need andyou wonthaveevidence that you are acat freak.

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

#102

Post by tricolon »

ROFISH wrote: post #85

It looks like they're not trying to decrypt the laptop for the fun of it, but judge has physical evidence that the laptop contains relevant information to the case. From the article: 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.

A recording of a phone call is now physical evidence of the existence of information somewhere else?

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

#103

Post by mahmud »

ctdonath wrote: post #51

It's a variant of what's called "rubber hose cryptology": sometimes it's technologically a lot easier to just beat the password out of someone (smacking the soles of one's feet with a rubber hose apparently being a rather effective technique). I draw the line using a "rag doll" model. They can compel fingerprints, physical keys, DNA, etc. insofar as they can manipulate your limp unresitive (albeit uncooperative) body…

Rubber-hose cryptanalysis. Cryptanalysis is the practice of cryptography that's only interested in breaking cryptographic protocols & implementations.

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

#104

Post by dedward »

baddox wrote: post #58
sp332 wrote: post #7

Earlier quoted context omitted.

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.

The deniability doesn't diminish at all. You can even testify in court that the drive is encrypted using TrueCrypt and that TrueCrypt has plausible deniability. The whole point of TrueCrypt's plausible deniability is even when you know about the feature, you simply can't mathematically prove whether or not it's being used.

not directly, but their faq pretty clear about a bunch of secondary ( out of band, internet updates duplicated, etc) correlations that could lead to good evidence that the second system exists. pulling that off is noeasy task.

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

#106

Post by tedunangst »

gcb wrote: post #95
tedunangst wrote: post #74

Earlier quoted context omitted.

Then explain that to the judge. The defendant in this case is not claiming to be the victim of mistaken identity.

that was even less to the point. you are good ignore the mistaken identity, was just a means to reach the false/wrong accusation resulting in the experiment he just did convicting him.

I don't see the problem. People get convicted based on faulty evidence. The sad fact is it happens. [Yes, that is a problem, but...] Why is cryptography special?

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

#107

Post by jrockway »

tedunangst wrote: post #37
grecy wrote: post #15

Earlier quoted context omitted.

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)

1. If there's no evidence that you know the password, that's possibly a reasonable defense. When the police have a recording of you saying "don't worry, the files are on my encrypted partition", it's less reasonable. 2. I would seriously reconsider the decision to carry unknown contents through customs.

2. I would seriously reconsider the decision to carry unknown contents through customs.

My ISP does this billions of times per day.

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

#108

Post by furyofantares »

alextgordon wrote: post #35
mikeash wrote: post #10

Earlier quoted context omitted.

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…

And, what if I do this? head -c 1048576 /dev/random >not_encrypted_I_promise I can't prove that file isn't actually encrypted data. Are we going to throw people in jail for possessing random data without a justification?

If they believe it's encrypted data containing incriminating evidence, and you refuse to decrypt it, you may be charged with obstruction of justice.

You have no need to prove it isn't actually encrypted data. All you must do is debunk whatever evidence they provide that it is encrypted. The prosecution must present compelling evidence that it isn't random data.

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

#109

Post by maratd »

nknight wrote: post #83
thaumaturgy wrote: post #81

Earlier quoted context omitted.

I've actually been in court for this kind of stuff. (Not as a defendant.) What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway. Your ability…

> What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway. Uh, yeah, so what? If they have the evidence to prove you committed a crime, then the…

> If you're not prepared to take that risk, you should probably avoid committing the crimes in the first place, no?

That presumes you have the capacity to know what is and what is not legal. In the US, no human being is capable of that. On top of thousands and thousands of federal statutes, you also have state, county, and local statutes to worry about.

If the prosecutor comes up empty and you piss him off by playing games, guess what? He'll go on a fishing expedition and he will find something because, quite simply, it's impossible to run a business for any period of time without breaking some regulation or statute somewhere out there.

There's a reason 90% of criminal cases end in plea bargain. It's not because the people pleading are guilty nor because they are dumb.

Look. Don't do things to piss off cops or prosecutors. Be cordial, be kind, be helpful. They deal with assholes all day, it's easy to forget the nice guy. Also, hire a lawyer who used to be a prosecutor and who is on very good terms with the prosecutor and the local judges. The evidence isn't going to matter. There's a 90% chance you won't even get to trial. Focus on ending things cordially and quickly.

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

#110

Post by tomflack »

dlytle wrote: post #62
underwater wrote: post #47

Earlier quoted context omitted.

TrueCrypt does exactly that. The problem is that everyone knows about it; so the police will always suspect there is a second hidden section.

Is it possible to have a third volume as well, opened with a different key? Or a fourth? Maybe the solution is to have a first "primary" partition, then an "under duress" partition which you'll fight tooth and nail to protect, filing every appeal possible... and if you finally do give up the key, it's filled with entirely legal but extremely embarrassing pornography, plus a few self-written Harry Potter fanfictions.…

I've been wondering about this every time someone brings this up. So you use Truecrypt to secure your disk, and have say a "naughty" partition and two "clean" ones, for plausible deniability.

Won't the police in the event they have compelled you to unlock your HDD check how big the partition is? If you have a 500GB disk divided by three say with the 20GB "naughty" partition, a 20GB "double-decoy" and a 460GB "decoy" partition won't the police pull the disk out, look at the label on it which says "Seagate 500GB" and say "You have 20GB left on this disk we haven't seen yet. Unlock it."?

Or is there a way in which trucrypt can hide your hidden partitions in a way that a) they don't look like randomized/encrypted data and b) it isn't obvious there is space "missing" from your disk.

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