Judge: Fifth Amendment doesn't protect encrypted hard drives • Hacker News Board

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

#81

Post by thaumaturgy » Wed, Jan 25, 2012, 1:10 AM UTC

nknight wrote: post #56

underwater wrote: post #47

Earlier quoted context omitted.

TrueCrypt does exactly that. The problem is that everyone knows about it; so the police will always suspect there is a second hidden section.

But if you've done it right, they can't prove it. In US law, you can't convict someone criminally because you suspect they're withholding information, you have to be able to prove it beyond reasonable doubt.

I've actually been in court for this kind of stuff. (Not as a defendant.) What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway.

Your ability to defend against tactics like this is 100% dependent on the size of your bank account, which, by the way, may also be compromised if the prosecutors can convince the right people that you made any money at all on your illegal activities.

This is why I am mostly blasé about things like TrueCrypt's capabilities or this particular part of the law or what-have-you. If you're doing something illegal involving a computer, you're already screwed anyway -- unless you're independently wealthy and have some serious connections.

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

#82

Post by leptons » Wed, Jan 25, 2012, 1:11 AM UTC

adgar wrote: post #79

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 evasio…

I don't think cost has anything to do with it. If they really want it that badly they can do their best to open it. My due process is more important than their budget.

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

#83

Post by nknight » Wed, Jan 25, 2012, 1:22 AM UTC

thaumaturgy wrote: post #81

nknight wrote: post #56

Earlier quoted context omitted.

But if you've done it right, they can't prove it. In US law, you can't convict someone criminally because you suspect they're withholding information, you have to be able to prove it beyond reasonable doubt.

I've actually been in court for this kind of stuff. (Not as a defendant.) What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway. Your ability…

> What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway.

Uh, yeah, so what?

If they have the evidence to prove you committed a crime, then they have the evidence to prove you committed a crime. It kind of makes sense that they'd, y'know, prosecute you for that crime.

They can't just arbitrarily increase your sentence based on the suspicion of another crime. There are statutory limits for the crimes they can prove, augmented by sentencing guidelines. The court cannot exceed the statutory limits, and deviations from the sentencing guidelines require a justification to be articulated. "I think you also did W" is not a valid justification.

You're always at risk of a harsh sentence for whatever crimes can be proven. If you're not prepared to take that risk, you should probably avoid committing the crimes in the first place, no?

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

#84

Post by bluedanieru » Wed, Jan 25, 2012, 1:26 AM UTC

EchoAbstract wrote: post #65

pavelkaroukin wrote: post #48

Earlier quoted context omitted.

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?

In the USA it is not legal (in violation of the 5th amendment) for the court to compel you to reveal a password (if your read the brief the Judge says as much). However, if the court can prove by other means that you own the data on a drive, they can compel you to provide them with the unencrypted contents of the drive via a search warrant.

If they can prove it, why do they need you to decrypt it for them?

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

#85

Post by ROFISH » Wed, Jan 25, 2012, 1:30 AM UTC

It looks like they're not trying to decrypt the laptop for the fun of it, but judge has physical evidence that the laptop contains relevant information to the case. From the article:

But the police had recorded a phone call between Fricosu and her husband in which she seemed to acknowledge ownership of the laptop and to reference incriminating material on it.

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

#86

Post by simcop2387 » Wed, Jan 25, 2012, 1:30 AM UTC

underwater wrote: post #44

simonsarris wrote: post #32

I have question to those who know more about these things: Instead of hidden volumes, wouldn't it be better to have an "under duress" password? The hard drive is encrypted and sensitive folders are identified by the user. When a password is given all contents are decrypted. When a "under duress" password is given the sensitive folders are permanently wiped and all the (remaining, innoculous) contents are decrypted. T…

It would still be possible to copy the hard drive at a lower level before password entry. You could then compare before and after password entry and see that large chunks of data have been modified.

Doesn't have to be large chunks, just one block that stored the encryption key for the other partition. All you have to do is scrub the key from the drive and it's effectively erased.

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

#87

Post by MichaelApproved » Wed, Jan 25, 2012, 1:57 AM UTC

Everyone is trying to figure out which encryption technique can bypass the law when it's already too late. The best solution for this type of case is to keep your damn mouth shut and don't talk about the contents of the drive.

"the police had recorded a phone call between Fricosu and her husband in which she seemed to acknowledge ownership of the laptop and to reference incriminating material on it."

Without that recording, the prosecutions case would be a lot weaker. Sure, encrypt your files, but keep your mouth shut about it!

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

#88

Post by WettowelReactor » Wed, Jan 25, 2012, 2:07 AM UTC

rosser wrote: post #52

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?

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…

Technically true with one caveat. If you have a reasonable expectation of litigation you are required to put all data destruction on hold. Reasonable can be up to the court to decide and the burden of proving that you did put a litigation hold into place is yours to prove.

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

#89

Post by rmccue » Wed, Jan 25, 2012, 2:08 AM UTC

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…

Could you not then argue the same for data encryption? Bruteforcing it would be the equivalent of a blowtorch in that case. Would that not then mean that they can compel you to give the key/password?

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

#90

Post by WettowelReactor » Wed, Jan 25, 2012, 2:09 AM UTC

pyre wrote: post #78

showerst wrote: post #53

Earlier quoted context omitted.

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.

Then it depends on what you destroyed. If the data is provenly destroyed there are limits to what you can be charged with. If what your hiding is worse this still maybe a viable option. If however the data is still recoverable with your cooperation I believe you could be jailed in contempt indefinitely (until you cooperate).