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Man jailed indefinitely for refusing to decrypt hard drives loses appeal

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

#401

Post by PJDK »

Chris2048 wrote: post #392
shawn-butler wrote: post #324

Earlier quoted context omitted.

Would you like to go to trial and attempt to persuade 12 non-technical jurors that "hashcodes" unequivocally demonstrate beyond any reasonable doubt that there is child porn on the external hard drive? It's a foregone conclusion technically that the illegal content is on the hard drive. His guilt is not a foregone conclusion (not in the US anyway). If you visit https://www.justice.org/sections/newsletters/articles/fi…

So it's True, but not True-to-a-jury True. Sorry, but legally, the latter should be the only standard of truth. If he exposes himself to a higher standard of guilt, then he is incriminating himself.

But are we not just in the world of normal warrants here?

To my mind private spaces (be that my house or my hard drive) should have some protection, but it seems reasonable that that is less than my personal freedom.

I have no issue with a warrant being issued on a balance of probabilities basis in order to find evidence to convict a person based on beyond a reasonable doubt.

And all this ignores the possibility of discovering further crimes and accomplices by investigating the contents of this drive - if there is a balance of probabilities likelihood of find those on the drive I don't see any problems with compelling this to be revealed.

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

#402

Post by braveo »

wfo wrote: post #400
braveo wrote: post #362

Earlier quoted context omitted.

It's a bad analogy, the police don't need your permission to gain access to your home. It'd be akin to the police coming across a written document in rot13 and jailing you indefinitely until you show them how to decrypt it. What if it turns out to be a grocery list and you used rot13 just as a matter of course? You went to jail over a grocery list? I don't think you can compare searching a house to forcing the decryp…

The fact that police can't access your data without your permission is a technical reason, not a legal reason. Warrants say the police can search your home. Everything in your home. The data on the machines in your home. If a police officer knocks on your door and presents a valid warrant and you say "good luck, I've booby trapped my home as a fortress with shotguns and explosives and I refuse to disable them" you wi…

> The fact that police can't access your data without your permission is a technical reason, not a legal reason. Warrants say the police can search your home. Everything in your home. The data on the machines in your home. If a police officer knocks on your door and presents a valid warrant and you say "good luck, I've booby trapped my home as a fortress with shotguns and explosives and I refuse to disable them" you will be locked in jail until you do. Police don't have to deal with your bullshit when a judge orders you to do something and you refuse to comply. They just lock you in jail until you do what they say.

When you start using such bullshit, outlandish arguments, you've lost the point.

> In your scenario, if they had a warrant for your grocery list or XMPP server data, you wouldn't be "jailed indefinitely", you'd be jailed until you complied with a lawful order to turn over the data you possess.

They have the data. What they don't have is an ability to interpret the data, but they most definitely have been given the data.

If that's really your measuring stick, then they need to let this guy go because they have the data in their possession.

What next, we're going to jail someone indefinitely (oh I'm sorry, not indefinitely, just "until they comply"...) because they refuse to read off their grocery list, which they wrote down in french because the police can't find someone else to read it for them?

no, fuck that, it's all splitting hairs.

"We don't want him to give us the password, just force him to unlock it for us, so it's totally not the same thing!".

Right...

Oh also.... you're wrong about the warrant point.

http://criminal-law.freeadvice.com/criminal-law/arrests_and_...

> Actually, the police might not be able to search anywhere just because they have a search warrant, there is a requirement that a warrant describe specifically the place to be searched and the items to be seized. Although it is possible that a warrant will give police a general license to search anywhere in a home, it is also possible that the search might be limited to specific areas in the home.

Maybe you live in a different country, but in the US it's typically understood that a warrant is meant to be specific to avoid the issue with police getting a warrant to look for a stolen bike and going through your toilet looking for hidden drugs.

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

#403

Post by braveo »

mjolk wrote: post #394
braveo wrote: post #377

Earlier quoted context omitted.

> If we agree that the files are definitely on the system [snip] then prosecute him and be done with it. Anything else is either a fishing expedition or we don't all agree that the files are definitely on the system... in which case it's still a fishing expedition. hashes can be inaccurate, it isn't a foregone conclusion in reality, just in their opinion.

> hashes can be inaccurate, it isn't a foregone conclusion in reality, just in their opinion. Not really, no. The chance of multiple hash collisions on a set of arbitrary images is a near impossibility.

near is not the same thing as impossible.

I told this story before, but I once read an article about a police officer who said it was impossible for another person to have logged into an account because it was password protected, when we know that's not even close to being true.

impossible and improbable are not the same thing, and I sure as shit don't feel comfortable making the case that it's 100% locked in because of a hash.

The requirement should be for them to look at the actual content, not the hash.

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

#404

Post by noahbullock »

It's my understanding that, while one is obligated to comply with a warrant granting police access to places or materials in one's control, one cannot be compelled to aid them in their search or understanding. In other words, if presented with a warrant, a person would be required to grant access to a home or to hand over an accounting ledger, but the Fifth Amendment protects against being compelled to tell police where in the home drugs are hidden or which line items in the ledger contain embezzlement. A warrant grants the police the right to search, but not the right to find.

With that in mind, here's a thought exercise:

Let's say that I'm caught on camera signing a document with a man who later kills my business partner. The camera then records me going into my warehouse with the document and emerging later without it. The police, believing that I arranged the murder and that the proof is in the document, duly obtain a warrant to search the warehouse.

The warehouse is large and when the police enter, they find it is stacked floor to ceiling with sheets of paper, all indistinguishable except for their contents. They estimate the number of pages to be in the billions -- far too many for them to feasibly comb through.

If I understand the right against self incrimination correctly, I can't be forced to tell the police where I hid the specific piece of paper they're looking for.

Why is this different from finding a password? Assume we use a 43 character password (since the encryption key is AES 256, a password longer than 43 characters wouldn't add additional security). If this is the case, approximately 1.01e86 - 1 passwords effectively yield a garbage document, and 1 password produces the document the police are looking for. If one can't be compelled to help the police find the solution in a physical search space, why can one be compelled to help find one in a digital search space?

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

#405

Post by Buge »

sitkack wrote: post #328
Buge wrote: post #99

Earlier quoted context omitted.

Keep in mind that a 17 year old taking a nude picture of themself is in possession of child pornography. Do you want a harsh minimum sentence for that?

Try them as an adult?

I don't understand.

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

#406

Post by Chris2048 »

PJDK wrote: post #401
Chris2048 wrote: post #392

Earlier quoted context omitted.

So it's True, but not True-to-a-jury True. Sorry, but legally, the latter should be the only standard of truth. If he exposes himself to a higher standard of guilt, then he is incriminating himself.

But are we not just in the world of normal warrants here? To my mind private spaces (be that my house or my hard drive) should have some protection, but it seems reasonable that that is less than my personal freedom. I have no issue with a warrant being issued on a balance of probabilities basis in order to find evidence to convict a person based on beyond a reasonable doubt. And all this ignores the possibility of d…

> I have no issue with a warrant being issued on a balance of probabilities

The problem with this is it isn't consistent with how the law works in other cases. For example, A judgment of 'guilty' is considered absolute, not probabilistic.

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

#407

Post by tripzilch »

some_guy_there wrote: post #372
rayiner wrote: post #270

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 That's not what the "foregone conclusion" stuff is about, at all. They're not saying "it's obvious he's guilty so the 5th amendment does not apply." The 5th amendment doesn't apply to handing over evidence, period. It's about the circumstances under which handing over evidence (which ord…

Take this comment as what I think 5th amendment should imply, not how it is currently applied by the courts. The concept of forgone conclusion is very weird. Imagine that I tell someone that I maintain a diary with log of all the events everyday. Then I tell this to my friends, family, (the police), etc. Let's say the prosecution can prove that I was at a spot where something illegal happened. If they knew I wrote a…

What is weird is basing a legal system around the constant re-interpretation of documents written hundreds of years ago and the implication that subtle nuances in ancient wording reveal a thus far hidden intent that somehow predicted today's technological advancements, society, their relevance and how these texts should be applied in today's light.

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

#408

Post by tripzilch »

dragonwriter wrote: post #380
harryh wrote: post #379

Earlier quoted context omitted.

Because it isn't revealing information that only exists in your mind. Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture. An evil government could coerce someone to falsely say "I did it!" An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence. Because…

> Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture. Thats not the sole purpose of the self-incrimination protection (which is, also, far too focussed in it's protections to meaningfully effect that end, since historically false testimony coerced through torture was very often sought from people other than the person it was…

You know what would be handy? If you were to codify these reasons and purposes unambiguously in a single, agreed upon, authoritative place (say, a law book or something), so you don't need to divine meaning from ancient texts and have the same silly discussion every time the subject comes up.

Take a look at the legal system of just about any non-English speaking country, to see how this could possibly work.

(Admittedly, it makes for great film scripts and courtroom scenes, which are valuable and important export-products of the US, but having clearly defined and agreed upon laws and rules is kind of important too)

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

#409

Post by tripzilch »

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.

> 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.

While I agree in principle with the sentiment, by calling it "piece of media", you presume it to be something inert.

Stepping outside the context of obscenity for a bit, code is data and data is code. It used to be (50-100y ago) a reasonable valid argument that any media is "just words" or images, unable to hurt anyone/thing unless interpreted and acted upon by human volition. However in today's information technology-enabled society, we have automated systems and machines that will consume the data on a piece of media, and automatically perform real-world actions that have large consequences and may hurt people.

Weaponized exploit code (etc) can exist on a piece of media, and you can imagine how a rule that "mere possession of any piece of media cannot be properly regarded as criminal" can somehow always be wrangled into a loophole that abuses this rule. Information is a very weird and fluid beast, just look at the oddities around "illegal primes" or "coloured bits", to see where computational science and law collide.

I believe that our old intuitions about the fundamental nature of "information" are being challenged in a way. I don't have solutions or answers, either. I want the freedom too, but saying it's "just information" on a piece of media is a bit too quick.

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

#410

Post by tripzilch »

byuu wrote: post #307
jMyles wrote: post #302

Earlier quoted context omitted.

> "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 stor…

> parodied well here: https://www.youtube.com/watch?v=sdu4wSBZqMM

You may enjoy Chris Morris in this Brass Eye special "Paedogheddon":

https://www.youtube.com/watch?v=RcU7FaEEzNU

(if you enjoy absurdism and black comedy -- I find absurdism to be an especially good fit for satirizing the Kafkaesque)

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