111–120 of 413 posts
Earlier quoted context omitted.
If someone released such a tool, the feds would make sure to clone your hard drive before supplying the password to it, or write a patched version of the tool that reads it to remove the disk wiping call. And then you'd be in really hot water.
I expect cloning to already be standard forensic procedure, but perhaps I'm wrong. If not, it should be.
Earlier quoted context omitted.
You need to distinguish between requiring the defendant to turn over incriminating evidence (which the 5th amendment does not protect), and requiring the defendant to make incriminating statements ( i.e. to provide incriminating testimony). Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all y…
Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password th…
Basically, judges don't agree on which way this scenario comes out.
> Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that.
The "foregone conclusion" stuff is narrower than Ars makes it out to be. The gist of the 5th amendment is that the government can make a defendant do things but not transfer information.[1] Sometimes, an action can implicitly transfer information. The foregone conclusion rule just says that if the government already has the information, then the action does not additionally transfer information.
In your hypothetical, the foregone conclusion rule would not apply because even if the government "could reasonably conclude" that you have a calendar, producing it would still confirm that conjecture (and thus transfer information). But if the government knows you have the calendar, however, because your sister testified that you keep a calendar of revolutionary meetings, then producing it becomes a pure action.
[1] I'd actually argue that the gist of the 5th amendment is even narrower than that: the government literally can't put you on the stand to testify against yourself, or enter into evidence a coerced confession. That's it.
Is there a charitable interpretation of this that I'm not seeing? Or is this truly as terrifying as it appears?
Nope. If this becomes widespread precedent, encryption is no longer viable in the US.
A simple solution is to have your encryption software automatically add a large garbage file inside every encrypted volume. When you have something to hide, replace the garbage file with your new encrypted data.
This lets you nest your encryption to arbitrary depth, allowing plenty of room for plausible deniability. E.g. you could put your financial records at the first level, pictures from an erotic crossdressing forum at the second level, and the stuff you’re ACTUALLY hiding at the third level.
Here's a recording of the oral arguments for the US Court of Appeals, Third Circuit back in September: http://www2.ca3.uscourts.gov/oralargument/audio/15-3537USAv.... The gov's argument seems to be that because the defendant doesn't have to give the government the password but rather produce the decrypted hard drives, his actions aren't protected under the fifth. Analogy drawn with unlocking a safe. EFF counter-argum…
This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking "well, those Founders were just idiots for putting such an amendment in, clearly it'd be much easier to prosecute people if we could compel them to witness against themselves, so why don't we just igno…
It's not bizarre at all. "To be a witness against himself" is not metaphorical or ye olde English. It literally means what it says--the government can't force someone to testify against himself ( i.e. to provide a confession). If the Founders had meant to say that the government can't compel someone to cooperate in an investigation at all , they would have said that.
The Fifth Amendment has been consistently interpreted to mean far more than "confession"
and this is why the software you use to encrypt hard drives should support plausible deniability. You give away the (other) password and the decrypted drive contains nothing but cat pictures.
Some discussion overlooks that this is a special case: ... the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already know there's child porn on the drives, so Rawls' constitutional…
I've never understood the foregone conclusion doctrine. If it's a foregone conclusion, the search should be unnecessary, not a special privilege. IIRC, he also stated that he has forgotten his password (and after 18 months, it has become believable).
Earlier quoted context omitted.
yeah, if it's a foregone conclusion, then why isn't the trial over and time being served?
Where's the mandatory minimums for possession of child porngraphy? The zero tolerance? Our prisons fill with drug offenders, yet we give sex offenders a scarlet letter + probation?
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mmm this poses an interesting question: what if a defendant/suspect cannot remember the password? Does anyone know if there is any comparable precedent regarding forgetting things?
If you're a politician, "I don't recall" seems to work wonders for depositions.
This is an interesting contrast to the article reported this past week about Nigel Lang, a black man in the UK who was accused of having or sharing child porn because of an extra digit added to an IP address during investigations[1]. One relevant section from the apology/explanation letter: "The issues around the downloading of IIOC [indecent images of children] are that statistically out of a cohort of offenders, th…