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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

#71

Post by nknight »

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…

This is a very clear and compelling (so to speak) way of thinking about the problem, and one I don't think I've ever heard before. Is this an independent invention of yours or is there literature to be found on the "rag doll" model?

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

#72

Post by gcb »

tedunangst wrote: post #40
alextgordon wrote: post #35

Earlier quoted context omitted.

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?

No, we're only going to throw people in jail for possessing random data and failing to produce encrypted documents we have evidence they possess.

that's the most dodged response ever.

i think for his question to even be made, it was assumed he was being accused of possessing encrypted something.

Let's attach the old guy from france that got into the 3 strike law without even having a computer at the time. Now let's say instead of getting the IP of that old guy from france, the police got the IP of the comment above yours, from let's say mr Buttle. Now they confuse him with Mr Tuttle and assume he has encrypted criminal data. but all they could find on his computer is the file "not_encrypted_i_promise".

he is then throw in jail because he failed to provide the password. His infective defense was that he was "playing" with philosophical questions regarding encryption.

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

#73

Post by plasma »

It would be cool to have a "canary" system in encryption.

For example, without having entered the 'everything is OK' password every week, the drive/encryption automatically destroys itself.

So if the drive is ever compromised, or you are separated from it, etc, the fact that you do nothing should cause the protected data to be destroyed.

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

#74

Post by tedunangst »

gcb wrote: post #72
tedunangst wrote: post #40

Earlier quoted context omitted.

No, we're only going to throw people in jail for possessing random data and failing to produce encrypted documents we have evidence they possess.

that's the most dodged response ever. i think for his question to even be made, it was assumed he was being accused of possessing encrypted something. Let's attach the old guy from france that got into the 3 strike law without even having a computer at the time. Now let's say instead of getting the IP of that old guy from france, the police got the IP of the comment above yours, from let's say mr Buttle. Now they con…

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

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

#75

Post by dkokelley »

nknight wrote: post #54
rosser wrote: post #52

Earlier quoted context omitted.

AIUI (IANAL, mind), no — or at least it's less likely. It's when you go out of you way to destroy the evidence (and can be demonstrated to have done so) that you're almost certainly facing obstruction charges. If you're just doing the same thing you do every day, it's much harder to establish the intent to destroy inculpatory evidence, which is what would trigger the obstruction charge in the first place. Second opin…

In civil cases, once you know or have reasonable cause to suspect a court case is imminent, you're technically supposed to act to preserve evidence, and not doing so can lead to sanctions, even if the evidence was destroyed as part of routine policy. I'm less clear on how evidence tampering is dealt with in criminal law.

In a criminal case (and likely in the worst of criminal cases), the suspect has no idea when the FBI will come bursting through the door to arrest him/her and seize hard drives. A dead-man's switch would be impossible to prevent in this scenario (aside from never using one in the first place).

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

#76

Post by tedunangst »

pavelkaroukin wrote: post #48
tedunangst wrote: post #46

Earlier quoted context omitted.

In my lay opinion, you are treading very close to making the lawyer complicit in the crime, at which point there is no privilege shield.

Only if lawyer is USA based this might make him commit a crime. But what if lawyer based in the country where forcing to reveal password is unlawful?

I imagine they would hold you in contempt until you convince the lawyer to provide you with the password. I'd be very careful about entering into such an arrangement. It's basically a conspiracy to withhold evidence.

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

#77

Post by pyre »

harshreality wrote: post #50
tedunangst wrote: post #33

Earlier quoted context omitted.

Then they restore the hard drive from the cloned image they made before entering the password and ask you once more for the password. This time, with feeling.

They would also tack on extra charges for interfering with a police investigation by attempting to destroy evidence, and/or the court would find you in contempt.

I don't think that contempt would apply. Either obstruction of justice or destruction of evidence.

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

#78

Post by pyre »

showerst wrote: post #53
roc wrote: post #42

Earlier quoted context omitted.

If an office had a policy of shredding old financial paperwork and that policy was faithfully followed on the day after, say, the COO was whisked away for embezzlement, would it count as evidence tampering? Or to the point: if you use a remotely-stored encrypted volume with a dead man's switch as a day-to-day security policy, would it still be trivial to charge someone for evidence tampering?

The first case is why we have data retention laws. On the second, I _think_ that in most jursidictions in the US the moment you're arrested you have an impetus not to destroy evidence that probably extends to not allowing evidence to be destroyed by a system that you could trivially prevent. Putting a system in place where you have to take action to prevent an event is legally similar to a system where you take actio…

If it's a dead man's switch and you're not a career criminal, I'm sure you could convince a judge that it slipped your mind because of the distress caused by being whisked off to jail. Probably not a guarantee that a judge won't say 'too bad' though.

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

#79

Post by adgar »

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…

> A fair argument may be made for compelling you to provide the key/combination to a safe, but only insofar as they CAN tear the safe apart with blowtorches & diamond saws if you don't cooperate.

Interesting argument.

Suppose I build a safe that costs $100 million to break open (because I spent $200 million of my ill-gotten money to hide $300 million more in ill-money).

Now you've found my safe during your tax evasion investigation, but you don't have close to $100 million in your budget. So you don't really have the ability to tear the safe apart. So they tell me I have to give them the combination.

Do I not have to help, in your opinion?

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