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U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment 417

Posted by Soulskill
from the bowling-for-scotus dept.
hansamurai writes with an update to a story we've been following for a while. Jeffrey Feldman is at the center of an ongoing case about whether or not crime suspects can be forced to decrypt their own hard drives. (Feldman is accused of having child pornography on his hard drives.) After initially having a federal judge say Feldman was protected by the Fifth Amendment, law enforcement officials were able to break the encyption on one of his many seized storage devices. The decrypted contents contained child pornography, so a different judge said the direct evidence of criminal activity meant Feldman was not protected anymore by the Fifth Amendment. Now, a third judge has granted the defense attorney's emergency motion to rescind that decision, saying Feldman is once again (still?) protected by the Fifth Amendment. Feldman's lawyer said, "I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. This case is going to go many rounds. Regardless of who wins the next round, the other side will appeal, invariably landing in the lap of the Seventh Circuit Court of Appeals and quite possibly the U.S. Supreme Court. The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0."
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U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment

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  • by Anonymous Coward on Wednesday June 05, 2013 @06:02AM (#43912645)

    ...to extradite from the United States any pesky people who insist on their so-called rights to not decrypt their data and jail them for up to 2 years under section 3 of the Regulation of Investigatory Powers Act 2000 if they persist in pretending they're not guilty.

  • by gnasher719 (869701) on Wednesday June 05, 2013 @06:17AM (#43912693)
    That judge didn't say "forced decryption of hard drive violates fifth amendment". The judge said "I'll look at the case and make a decision, and there will be no forced decryption until I make my decision".

    Myself, I cannot see anything wrong with the original decision. "Fifth amendment" is about self incrimination in statements to police or to the court. This case is about being forced to give the police or court access to evidence.

    If the police has a warrant to search your home, it isn't obviously clear whether you can be forced to open the door, and it doesn't matter in practice because the police is allowed to and will break your door, so the only practical difference is two minutes of work for the police, and a broken door for yourself. This situation is exactly the same, except that the door is unbreakable.

    Imagine you stand in front of a house door, the police arrives with a warrant and ask you to open the door. You say "It's not my house, break the door if you like, but I don't have keys to let you in". There is no doubt that the police has the right to get in. But opening the door would prove that you have access to the house, so if the police doesn't know that, opening the door would be self incriminating. Not so if you are _inside_. The police would know that you have access, so opening the door is not self incriminating. Giving the police access to the evidence inside doesn't count as "self incriminating" and isn't protected by the fifth amendment.

    And it's the same with an encrypted hard drive. You can't be forced to admit that you can decrypt the hard drive, if that knowledge, the knowledge that you _can_ decrypt, was incriminating. But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.
  • Re:My goodness (Score:5, Informative)

    by nospam007 (722110) * on Wednesday June 05, 2013 @06:35AM (#43912745)

    "But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director [cnn.com] "taking the fifth" makes no sense, she wasn't on trial."

    I you shut your cake-hole when the police interrogates you, chances are that you'll never go to trial. People always seem to think that they can talk themselves out of being arrested or indicted, let me assure you, it's not the case.

    Don't talk to the police, ever! It can only hurt you. It doesn't matter if you're guilty or not.

    They don't tell you for nothing that everything you say can be used against you, they mean it and they will.

  • Re:My goodness (Score:5, Informative)

    by Blaisun (2763413) on Wednesday June 05, 2013 @07:30AM (#43913015)

    By the way, in case somebody doesn't understand what the 'fifth' is, it's the lack of authority by the government to force somebody to testify against themselves.

    To understand its roots, you have to look back at when kings and other rulers would capture and torture somebody to get a 'confession'. When people are tortured, most will confess to just about anything, so torturing is a very simple way to get a conviction (or to murder somebody, whichever comes first) and using torture to get a conviction can often lead to murder at the end of torture anyway.

    But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director [cnn.com] "taking the fifth" makes no sense, she wasn't on trial.

    Saying: 'I am taking the fifth' only makes sense when you are on trial or a suspect of a police investigation, but it doesn't make sense to say "fifth" when you are testifying to Congress.

    You can refuse to answer questions, but invoking the fifth amendment has no meaning in that context, AFAIC she admits her guilt and/or lack of understanding of the law when she says that.

    OTOH in this case I am NOT convinced that the fifth amendment is relevant in cases of encrypted data!

    Forcing somebody to unlock their data is not the same as forcing somebody to sign a statement. After all, it's real data, it's already there. By being forced to unlock the data you are not being forced to say something new, it's not new information that is on the disk, it's not like you are forced to say: I am guilty, here is the body.

    You are forced to open a box that may have data providing that you are guilty, but that information is already there and it's not new, you weren't forced to first create that data and then give it up, you are forced to open the data that existed already in a form that is not attached to you, it's independent of you, it is already existing outside of you.

    How is that equivalent of being tortured (or punished) into saying the words: I am guilty, here is the stuff you are looking for?

    I am just being pedantic here, the fifth is not necessarily a protection against being forced to give up data that already exists that you do not have to create or produce at the moment of giving it up.

    I disagree with your take on the "fifth", you should be able to take the fifth on any statement that COULD be used against you in court, just because you are not there now, doesn't mean that the statement you make will not land you there.

    in addition, i will also take the counter point on decrypting the HD. i take the essential meaning of the fifth as to you should never have to provide evidence against yourself. By providing them with the password, or whatever the key is, to the encrypted HD, you are providing them with evidence that they would not be able to get with out your assistance. If they are able to get the evidence(brute force decryption, or what have you) without your assistance, with a warrant, that is fine, but you should never have to assist, in any way, in your own prosecution.

  • Re:My goodness (Score:5, Informative)

    by _Ludwig (86077) on Wednesday June 05, 2013 @07:59AM (#43913161) Journal

    "But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director "taking the fifth" makes no sense, she wasn't on trial."

    I can’t see whomever you’re quoting, but this is nonsense. While the text of the Fifth protects you from incriminating yourself at criminal trial, subsequent Supreme Court decisions have ruled that it applies much more broadly. People take the Fifth all the time when they’re testifying at hearings or as witnesses, i.e. not on trial. The right to remain silent under police questioning derives directly from it.

  • by Anonymous Coward on Wednesday June 05, 2013 @08:32AM (#43913361)

    If they found CP on the decrypted drive as they claim, then why do they need the rest decrypted to get a case?

    IMHO, the wording was telling:

    "The storage device was found to contain 'an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders,' approximately 707,307 files (among them numerous files which constitute child pornography)"

    It sounds like a normal backup of a normal PC and 'up-skirts' shots of Hermione Granger he might be able to present as child porn in sound bits like this, but apparently he knows its not enough to get a conviction because he wants the other drives decoded.

    Really defendant should not be punished for refusing to help in his conviction and if their claim his true, he wouldn't need to be punished for that, because they'd already have the evidence they seek. So they DON'T have the evidence and they're simply trying to pull the wool over the judges eyes.

    If you let the Fifth go 'for the children', then they'll take it for everyone all the time. It will be an extra charge to be added to the sentence.

  • by Anonymous Coward on Wednesday June 05, 2013 @08:40AM (#43913427)

    If the drives were connected to your computer, then it's hard to say you don't have the password.

    I actually had an encrypted hard drive with forgotten key in my computer for years.
    Theres was no reason to remove the old harddrive when I bought a new one and I didn't need the data so I eventually forgot the key.
    Also, I think it is difficult to prove the last access time without decrypting the drive.

  • by Qzukk (229616) on Wednesday June 05, 2013 @09:16AM (#43913743) Journal

    they can get a warrant to search your house for the gun.

    And when they show up, they're free to rip the sheetrock off the walls, tear apart your upholstery and dump out all of your potted plants, but they can't make you tell them you taped the gun to the inside of the chimney.

  • Re:My goodness (Score:5, Informative)

    by john.r.strohm (586791) on Wednesday June 05, 2013 @09:19AM (#43913767)

    I wish it was that good an answer.

    I RTFA. It wasn't.

    This was a hearing on a motion objecting to a procedural point. The previous proceeding, in front of a Federal magistrate (not a judge: key point, although obscure) at which the order to decrypt the drives was issued, was attended only by the prosecutors and the magistrate. Defense counsel was not present and was not able to argue against the order. According to TFA, the judge agreed with this part of the motion, set the order aside, and ordered both parties to submit additional briefs on the matter.

    It isn't over.

    At this point, as I read the tea leaves, even if he wins the 5th Amendment case, Feldman is toast. They found kiddie porn on the one piece they were able to crack. They also found financial data on the drive that ties it to Feldman. Even if the prosecutors are forced to go to trial with just what they have today, they almost certainly have enough to convict him for possession of kiddie porn and put him in prison.

  • Re:My goodness (Score:5, Informative)

    by srobert (4099) on Wednesday June 05, 2013 @09:36AM (#43913909)

    I think he could still be convicted for the evidence that was seized without his encryption. He may or may not be guilty. (You're assertion that "he clearly committed a crime" is premature. Have you seen the evidence?.) The evidence should be considered by a jury. But the order to make him decrypt his own hard drive is being batted around as a violation of the fifth amendment. One judge says it is, another its not, etc. If it is a violation, then the portion of evidence that was obtained in this way will be considered inadmissible in court.

    The fifth amendment:
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

    Unfortunately, most Americans today would throw out the fifth amendment (and most of the rest of their Constitutional rights) in exchange for promises of protection from terrorists, pedophiles, etc. For most Americans now the notion of due process is a quaint notion that should be dispensed with as quickly as possible. This is what happens when a nation fail to educate its citizens.

  • by SecurityTheatre (2427858) on Wednesday June 05, 2013 @10:24AM (#43914323)

    I have mixed feelings on this. Is it analogous to requiring him to tell where the body is buried, or analogous to requiring him to let them enter his house with a search warrant?

    But you can't require him to open the door for you. In fact, he has no obligation to do anything at all. He can go turn himself in at the police station, leaving all of the doors locked and sealed. As long as they're not booby-trapped, he's not committed a crime, nor can he be compelled to help unlock them.

    There is ample case law regarding a safe, or hidden chamber in a house. The accused cannot be compelled to identify or assist in opening the safe or chamber, partially because doing so demonstrates that he knows how to open/find it, and also because it clearly demonstrates that it is his property, both of which are self-incriminating.

    In the US, it was established early on that it was supposed to be difficult to prove these things to prevent judicial and law enforcement abuses and the use of powerful judicial tools with impunity. I support this concept.

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