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Man jailed indefinitely for refusing to decrypt hard drives loses appeal

arstechnica.com

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Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#301

Post by pbhjpbhj »

stult wrote: post #231
pbhjpbhj wrote: post #208

Earlier quoted context omitted.

Perhaps the FBI have unlocked it, but them having the password doesn't prove that the accused had it. My guess is they wouldn't be pushing on with the case if they didn't know for sure that access would 'demonstrate' criminality. Similarly I imagine the accused knows that if they admit access they're going to spend a lot longer incarcerated. An impasse for our times

That is precisely the scenario that actually would violate the Fifth Amendment, because it forces him to be a witness against himself.

So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible?

Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence.

Who does such an interpretation of The Fifth protect?

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#302

Post by jMyles »

byuu wrote: post #258
jMyles wrote: post #164

Earlier quoted context omitted.

> That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn? The answers to these questions are obvious: no and no. If the answers are any different or short of being absolute, then that's a clear hole in the first amendment.

> The answers to these questions are obvious: no and no. Tell that to Chris Handley [1]. He imported a pornographic comic book from Japan, a postal inspector got his panties in a bunch over it, and a prosecutor pushed for 15 years in prison and life as a sex offender unless he plead guilty. Knowing he'd probably lose in front of a jury of his peers [2], and being blackmailed with the threat of 15 years, he took a ple…

> "Obscenity" is the thing that needs free speech protections the most.

Agreed.

I'm even of the mind that mere possession of any piece of media cannot be properly regarded as criminal, precisely because it interferes with the far more important right to free speech.

It seems to me that prohibiting the creation or sale of child porn is more appropriate.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#303

Post by xelxebar »

kelnos wrote: post #184
xelxebar wrote: post #153

Earlier quoted context omitted.

Thanks for the lucid explanation. What befuddles my non-lawyer mind is that why such evidence is needed in the first place. If it's established firmly that someone has piles of illegal files, then for the sake of their incrimination, why do the files need to be produced at all? If on the other hand, the files are being requisitioned for purposes unrelated to the the defendant's current outstanding culpability, then w…

IANAL, but from reading about this case (and opinions from actual lawyers), I believe it's because they actually don't have the evidence to convict (or they believe the evidence they have, absent the files on the encrypted drive, are not enough, or at least not enough for the sentence they want). They know the evidence on the drive exists, but cannot get up in front of a judge and jury and say "because we found these…

I'm not so confused about the legality here as much as I don't understand why they need the files at all if they have irrefutable evidence that he has them.

If I have sales receipts and camera footage showing you purchased 100 Led Zeppelin CDs, do I need to see the CDs in person before I know you have good taste in music?

I'm guessing this has something to do with the subtleties of admissible evidence versus 4th amendment stuff.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#304

Post by pc86 »

dublinclontarf wrote: post #193
Sir_Substance wrote: post #183

Earlier quoted context omitted.

So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I thin…

> what should we do? Release him and pay millions in compensation for violating his writ of Habeas corpus.

That's not what Habeas corpus is. Contempt is 100% lawful.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#305

Post by [deleted] »

mickronome wrote: post #209
Consultant32452 wrote: post #167

Earlier quoted context omitted.

If you refuse to hand over subpoenaed evidence you can be held in contempt of court which usually results in some sort of fine, but could potentially result in jail time. Note that this all occurs before your conviction, so time spent in jail for contempt does not count towards your eventual sentence.

Yes, but why are the files needed if it is know which files the drive contains based on hashes, as thousands of hashes matching known images should be plenty to convict on ? Maybe the hashes can only tell that some drive contains the images, and the prosecutor believes it is this particular drive, and tries to avoid having to deal with that defense ? If there is evidence that the particular drive contains those image…

[deleted]

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#306

Post by pc86 »

pbhjpbhj wrote: post #301
stult wrote: post #231

Earlier quoted context omitted.

That is precisely the scenario that actually would violate the Fifth Amendment, because it forces him to be a witness against himself.

So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible? Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence. Who does such an interpretation of The Fifth protect?

As the courts have interpreted it, 5A protects you if they can't even prove the safe is yours, or if otherwise admitting that you know the combination or that you know what's in the safe would result in incriminating testimony. 5A doesn't apply here because they know the device is his, and that prior to his arrest he had regular access to it. It's not incriminating testimony, it's delivery of evidence in a criminal trial subject to a lawful subpoena.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#307

Post by byuu »

jMyles wrote: post #302
byuu wrote: post #258

Earlier quoted context omitted.

> The answers to these questions are obvious: no and no. Tell that to Chris Handley [1]. He imported a pornographic comic book from Japan, a postal inspector got his panties in a bunch over it, and a prosecutor pushed for 15 years in prison and life as a sex offender unless he plead guilty. Knowing he'd probably lose in front of a jury of his peers [2], and being blackmailed with the threat of 15 years, he took a ple…

> "Obscenity" is the thing that needs free speech protections the most. Agreed. I'm even of the mind that mere possession of any piece of media cannot be properly regarded as criminal, precisely because it interferes with the far more important right to free speech. It seems to me that prohibiting the creation or sale of child porn is more appropriate.

In an ideal world, I want possession of real CP to be a crime ... that is, if it could stop there. I would be willing to accept that small bit of cognitive dissonance / hypocrisy. I'm very sympathetic to the victims of abuse having their images out there being sold and traded online.

But then you have cases like Handley where cartoons are criminalized (which I consider to be a thought crime), and cases like this story where it's used to basically eviscerate the fifth amendment ... and it really makes it clear: you cannot have exceptions to free speech, or it will continue to grow and gut everything else. It's not a "slippery slope" argument ... the slope has already happened -- we're seeing it right now. An appeals court just said you can rot in jail for the rest of your life if you forget your password. And they're going to get away with it because of the horrific spectre of CP ( parodied well here: https://www.youtube.com/watch?v=sdu4wSBZqMM )

As much as I abhor the content, I really believe prosecutors should be going after the producers, the sellers, the people collecting ad revenue off of hosting this stuff, and of course, the actual abusers themselves.

I'd like to see the people with paraphilias they didn't ask for have access to proper counseling, access to anti-androgens, etc.

But we don't live in a country that wants to help people. We live in one that wants to punish people -- even if that results in more victims.

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#308

Post by pc86 »

jacobush wrote: post #213
69mlgsniperdad wrote: post #207

What would happen if he lobotomized(carefully and mildly) himself, and legitimately could not remember his encryption keys/pw nor the reason he performed lobotomy?

Or very carefully shot himself in the heart?

Surely this layman knows enough about the brain to know how to lobotomize himself such that he forgets his passwords, but not such that he forgets how to perform a self-lobotomy!

Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal

#310

Post by paulddraper »

naasking wrote: post #299
paulddraper wrote: post #182

Earlier quoted context omitted.

Yes, they can proceed without your assistance. Also, they can charge you with obstruction with justice.

Are you sure about that? I don't think warrants require you to assist the police in their search, you simply can't obstruct them, so they can't charge you with anything.

That you can be forced to produce a known piece of physical evidence is the premise of the very article you quoted, so yes, I am pretty sure.
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