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Man jailed 16 months, and counting, for refusing to decrypt hard drives

arstechnica.com

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Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#151

Post by Kostchei »

AckSyn wrote: post #17

He shouldn't have to decrypt his hard drives, and I support his decisions. The problems with this are numerous. First of all no one has any duty to provide the police with evidence as a 5th amendment protection. It's not a "right" for the police at all to have. Imprisoning someone for failure to disregard their constitutional rights is absurd. They have no evidence to hold him period.

I think the idea of 16 months for contempt is legally ridiculous. However, they have some evidence. I presume their de-construction of freenet will have given them some insight. The technical issue that concerns me, and I'm not sure if they have addressed, is how freenet stores data and whether the material they allege is his or a 3rd party's. Last time I looked into freenet it was doing the equivalent of storing chunks of other people's data, encrypted of course, on your machine. Like being a torrent server and storing some of the actual data the torrents refer to. A peer to peer data network, not just a reference library. Yes that sounds crazy, but that was the state a few years ago. No wonder it ran like treacle.

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#152

Post by vilhelm_s »

kelnos wrote: post #122
cookiecaper wrote: post #84

Earlier quoted context omitted.

It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation t…

> Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so. So here's the thing about that. If he's filed an appeal on…

I'm not a lawyer, but doesn't he also have the option to comply the order to decrypt, and then ask that the evidence should be supressed because the order contradicted the 5th amendment? That would provide a separate route for the constitutional challenge which would not require him to be in prison in the meantime. (Well, presumably he would be in prison for a child pornography conviction instead, so maybe it's equivalent.)

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#153

Post by ouid »

mnm1 wrote: post #69
droithomme wrote: post #37

Earlier quoted context omitted.

"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the resid…

The difference is, one doesn't have to cooperate with a search warrant. The idea of encryption being a lock like on a locked door is ludicrous and downright dangerous. Using a fantasy metaphor in place of actual reality is incredibly misleading and outright manipulative. The difference between a lock and encryption is that all locks in the physical world can be broken by outside parties. If someone doesn't want to op…

I think this argument would be more compelling if instead, you pointed to the fact that they cannot prove that the hard drive contains anything at all. The problem of deciding whether or not the hard drive is encrypted is equivalent to decrypting the hard drive. It's like the police showing up with a warrant to enter a house that they cannot prove exists, or that I am the owner, and then holding me in contempt for failing to open it.

What if your hard drive was encrypted maliciously and then taken into evidence? Is it even possible to prove that this isn't the case?

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#154

Post by nikdaheratik »

imh wrote: post #134
droithomme wrote: post #37

Earlier quoted context omitted.

"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the resid…

I have a technical question about this comparison. In the locked door example, is the warrant an allowance for police to enter the area without the owner's permission, or is the warrant an order for the owner to give permission and assist?

If you're home, you have to let them in. If not, they are allowed to break in.

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#155

Post by coldtea »

dmm wrote: post #107
bluejekyll wrote: post #92

Earlier quoted context omitted.

> it's clear from reading other writings by the Founding Fathers that the 2nd Amendment was written to allow an individual to own firearms. This is irrelevant, it matters what made it into the contract, i.e. Constitution. The second amendment in full is: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." A well regulated mi…

The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states. If you don't like that get 2/3rds of congress to agree with you and change the constitution.

>The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states.

That's what we discussed. Given what the constitution says, that ruling is BS.

The law and supreme courts are politics --not some clean, divine, body that comes with only just rulings.

"Liberty and justice for all", for example, if I'm not mistaken, was in there from the beginning, but the courts could not give a rats ass for slavery, segregation, etc, until they were forced to by popular protests.

So, that 2/3 of the congress is not much consolation either.

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#156

Post by evgen »

dmm wrote: post #107
bluejekyll wrote: post #92

Earlier quoted context omitted.

> it's clear from reading other writings by the Founding Fathers that the 2nd Amendment was written to allow an individual to own firearms. This is irrelevant, it matters what made it into the contract, i.e. Constitution. The second amendment in full is: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." A well regulated mi…

The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states. If you don't like that get 2/3rds of congress to agree with you and change the constitution.

The supreme court also ruled that child labor laws were unconstitutional, that collective bargaining was illegal, and that runaway slaves should always be returned to their original owners wherever they were found. Precedent changes, and an activist ruling like Heller that is more political than judicial in its justification is relatively easy to reverse. No need for a constitutional amendment for the first 13 words of the 2nd amendment to no longer be written in invisible ink, just a good case and poof it becomes a collective right the same as it was for the first 175 years or so of US history.

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#157

Post by coldtea »

briHass wrote: post #114
bluejekyll wrote: post #92

Earlier quoted context omitted.

> it's clear from reading other writings by the Founding Fathers that the 2nd Amendment was written to allow an individual to own firearms. This is irrelevant, it matters what made it into the contract, i.e. Constitution. The second amendment in full is: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." A well regulated mi…

It's not irrelevant, because it allows you to understand what words like "militia" and "well regulated" meant at the time. They don't mean what a casual reader might think they do. The Supreme Court frequently goes back an looks at other historical records/writings of the time to dig into the real meaning of the words. It really doesn't matter, because as Heller held, the first part of that sentence is the prefatory…

>because as Heller held, the first part of that sentence is the prefatory clause which doesn't limit or expand the scope of the actual, operative clause

Which is exactly the inverse of what it should be: the spirit of the law being above and adjusting the "operative" part.

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#158

Post by loup-vaillant »

tansey wrote: post #94
cookiecaper wrote: post #84

Earlier quoted context omitted.

It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation t…

Except it seems there is good case law to show that in fact suspected cannot be forced to open a combination lock, as it falls under fifth amendment protection. They can, however, be compelled to provide a key if it is a key-based lock. This applies similarly to biometric-based locks. It's hard to believe that an encryption key is any different than a combination lock in this "encryption is like a safe" metaphor. Rel…

Could it just come from our particular choice of words?

An encryption key sounds closer to a safe key than to a combination lock. A small broken analogy later, the judge rules that encryptions keys are keys, and the defendant may be compelled to provide them.

Just because we called it a a "key", instead of the more accurate "combination", or "code".

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#159

Post by nikdaheratik »

JumpCrisscross wrote: post #95
AckSyn wrote: post #17

He shouldn't have to decrypt his hard drives, and I support his decisions. The problems with this are numerous. First of all no one has any duty to provide the police with evidence as a 5th amendment protection. It's not a "right" for the police at all to have. Imprisoning someone for failure to disregard their constitutional rights is absurd. They have no evidence to hold him period.

Can he appeal this judge's decision to imprison him? Or is he trapped given the lack of a conviction?

They are appealing, but it's not on any rushed schedule so the appeals court is just leaving him in there.

Re: Man jailed 16 months, and counting, for refusing to decrypt hard drives

#160

Post by coldtea »

throwanem wrote: post #128
coldtea wrote: post #89

Earlier quoted context omitted.

> The laws of men distinguish mere murder from killing in general, whether it be manslaughter, justifiable homicide, the conduct of warfare, or any of sundry other nuances. Why, then, should the law of God overlook the same distinction? Because that's old testament morals that have been deprecated by Christ. That's the whole point of getting a NEW testament. And Christ is quite clear about the "not kill in general" p…

> Because that's old testament morals that have been deprecated by Christ. In general, you're not wrong. In this case, though, you are. Matthew 19:16-19 [1]: > 16 And, behold, one came and said unto him, Good Master, what good thing shall I do, that I may have eternal life? 17 And he said unto him, Why callest thou me good? there is none good but one, that is, God: but if thou wilt enter into life, keep the commandme…

>Had Christ intended to modify the commandment to "thou shalt not kill", I expect He would have.

Well, he also gave additional commands and advice of his own to that very effect.

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