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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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  • Rights... (Score:4, Insightful)

    by Anonymous Coward on Wednesday June 05, 2013 @04:24AM (#43912529)

    How much cash you got? :/

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

    by Anonymous Coward on Wednesday June 05, 2013 @04:39AM (#43912573)

    An outbreak of common sense. I can scarcely believe my eyes.

    Now to see if it holds.

    It won't.

    I promise.

    This is but one more cut...in the 1,000 cuts that will ultimately be the demise of our Rights.

    And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

    It won't.

    I promise.

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

    by Taco Cowboy (5327) on Wednesday June 05, 2013 @04:44AM (#43912593) Journal

    An outbreak of common sense. I can scarcely believe my eyes

    Unfortunately it won't last long

    With so much weighting on this - money, power, greed, and the insatiable desire (on the part of both the Liberals and the Conservatives of the American government) to restrict the liberties of the American people, this outburst of common sense would be anything but a short-flash

  • Robin Shellow (Score:5, Insightful)

    by cffrost (885375) on Wednesday June 05, 2013 @05:02AM (#43912647) Homepage

    "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. [...] 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." — Robin Shellow

    God damn right. I don't care what anyone says about lawyers — this woman speaks the truth, and she has my respect.

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

    by Nerdfest (867930) on Wednesday June 05, 2013 @05:34AM (#43912735)

    Many offer hope. It's delivering the reality that seems to be beyond anyone's grasp once they've had a taste of power.

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

    by ultranova (717540) on Wednesday June 05, 2013 @05:47AM (#43912795)

    Either "Terrorism" (makes you think who really won, doesn't it?)

    Osama did. Not only did he deliver what appears to have been a mortal blow, both morally and economically, but got away with it too, living in comfort and watching his enemies finish his work for him, and finally receiving a quick and easy death just before the onset of old age, making him a martyr in the eyes of his followers.

  • by dutchwhizzman (817898) on Wednesday June 05, 2013 @05:56AM (#43912839)

    If the police arrives with a warrant, you don't have to open the door for them. It is not a crime to not open that door. However, they have the right to knock it down and you can't claim damages that you may occur because of it. You don't have to actively assist the police in serving the warrant. As long as you are not actively obstructing them (putting up extra barricades, destroying evidence after they announced their warrant), you're not doing anything illegal.

    If you know there is evidence against you on the encrypted device, you would be incriminating yourself by turning it over to the police. The police can presume there is evidence on the drive, but presumption is not proof. Once you hand over that evidence, it would be admissible and thus self incriminating.

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

    by jythie (914043) on Wednesday June 05, 2013 @06:25AM (#43912981)
    On the other hand, he failed his various stated goals. People often forget that the attacks on the US are not some abstract 'they hate our freedom' thing, but tools towards specific political goal. To say he 'won' is like saying a barricaded criminal who manages to shoot a couple cops before the SWAT team gets them 'won' because they managed to 'hurt' the police.
  • Re:My goodness (Score:5, Insightful)

    by Anonymous Coward on Wednesday June 05, 2013 @06:47AM (#43913103)

    Here, let me fix the analogy for you. Your criminal doesn't shoot the cops, he infects them with the black plague. Two weeks later, all the cops are dead. Now, who won? By any measure, Osama won on 9/11. I saw it the week after. Our response was wrong then, and has been ever since. Amerika is dead, just waiting on the autopsy.

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

    by ranulf (182665) on Wednesday June 05, 2013 @07:15AM (#43913265)

    Granted, I'm not an American, so my understanding of US law is a bit wooly, but somebody please correct me if I'm misunderstanding the story so far.

    • The "authorities" wanted him to hand over the encryption keys to his hard disk, which would have incriminated him and this violated the fifth amendment.
    • He never handed over these keys, yet the "authorities" were able to eventually break the encyrption anyway and prove he'd committed a crime.
    • This judge says that this evidence can't be considered because they'd previously asked for the keys and he'd refused.

    Where is the common sense here? This guy clearly had child porn on his computer - it's been found without violating his fifth amendment rights. He's clearly committed a crime and the common sense thing here is to try him and convict him accordingly. The encryption keys to the other hard disks now would just provide additional evidence and perhaps the identities of other perpetrators. But if they already have enough to convict him, there is surely no common sense in letting him off while they debate whether they should be allowed access to the other drives or not.

  • Re:My goodness (Score:4, Insightful)

    by L4t3r4lu5 (1216702) on Wednesday June 05, 2013 @07:35AM (#43913387)
    I'm just guessing here, but I believe the judge sees that "You were looking for CP. You found it. What are you looking for now? He's already guilty on the CP charge. You don't get to fish for more stuff on other drives."
  • by Lumpy (12016) on Wednesday June 05, 2013 @07:53AM (#43913529) Homepage

    A judge that defends the constitution is not desirable to the Republicans or the Democrats. He is an enemy to both parties and will be replaced after this. I think the judge is a hero, but in the USA today, that is career suicide to not let the government trample any and all rights.

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

    by gstoddart (321705) on Wednesday June 05, 2013 @08:00AM (#43913573) Homepage

    There's a step 3 in there you missed.

    A judge initially said he was shielded from being required to decrypt due to the 5th amendment. After the police decrypted his hard drives anyway and found child porn, a second judge said that since they've already found stuff, he wasn't entitled to claim a defense against self incrimination. Basically said he would now have to decrypt because he was already guilty.

    A third judge has now said that just because they cracked the encryption on some things and found incriminating evidence, it doesn't mean he's required to decrypt the rest (and in effect self incriminate).

    So, he was protected by the 5th amendment, they decrypted *some* stuff, another judge said he would have to decrypt the rest (and violate his 5th amendment rights), but that judge has been overruled.

    They will absolutely be able to charge him with the evidence they got when they decrypted the drives themselves. He won't get walking away. BUT, he doesn't need to help them convict him.

    Again, I'm not a lawyer, but this is more about how much the accused needs to cooperate with police. In this case, he still doesn't need to cooperate, but the point might be moot, since they've already decrypted some of it.

    They are NOT letting him walk away on charges of possessing child pornography. This dispute is entirely about if he is required to help the police convict him by being required to decrypt his data -- and *that* would violate his 5th amendment rights.

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

    by Chickan (1070300) on Wednesday June 05, 2013 @08:21AM (#43913781)
    It was never about them hating our freedom, Osama himself said it was because of our support of the House of Saud, keeping them in power in Saudi Arabia, and our support of the state of Israel. To those goals, Osama failed, we still have the same power structures in place in those two countries. Now Egypt and other places are changing, so it was a success in other places.
  • Re:My goodness (Score:2, Insightful)

    by MightyYar (622222) on Wednesday June 05, 2013 @08:50AM (#43914047)

    This judge says that this evidence can't be considered because they'd previously asked for the keys and he'd refused.

    No, he has several drives. Before they cracked one of them, there was no evidence even tying the drives to him. Now they apparently have some evidence tying him to the drives, and they apparently have some evidence to support him collecting child porn on the other (still encrypted) drives. The evidence already uncovered is fair game.

    It's a tricky problem... on the one hand, it seems easy to equate it a physical key and a physical lock. In reality, it is more complex, since the "key" is really knowledge and the "lock" cannot be picked, pried, or otherwise forced open in the traditional sense. In the past, if a suspect had some documents ferreted away in a vault, the prosecutors could get a subpoena to crack the vault. Now they have the subpoena, they have the "vault", but they are frustrated because the vault is practically unbreakable.

    Personally, I think I side with the defendant.

  • Re:My goodness (Score:4, Insightful)

    by parkinglot777 (2563877) on Wednesday June 05, 2013 @09:15AM (#43914245)
    Even though it is likely that he is toast, it does not mean he will be toast. In law, there could be many things sprung up and cause you to lose a case. Or you prosecute it in a way that at the end the current support evidence is not good enough. The more evidence, the better to ensure the winning. If you keep jumping into a conclusion with whatever evidence you have while you could actually get more support evidence (and you know that this evidence will immensely help your case), it could potentially cause you to lose the case. It is a common sense to gather as much support evidence as while you could to ensure the winning.
  • Re:My goodness (Score:5, Insightful)

    by gnasher719 (869701) on Wednesday June 05, 2013 @09:26AM (#43914339)

    Wouldn't that be the Fourth Ammendment not the Fifth Ammendment? I understand and agree with the Fifth Ammendment preventing forced password disclosure and the Fourth Ammendment preventing the cops from taking/decrypting the drives without a warrant but I am confused how they are breaking the Fifth by decrypting the drives after they had recieved a warrant.

    That was the (then) correct situation. They had a search warrant. Imagine he decrypts the drive, and the police finds lots of pictures. But no actual evidence on the drive itself that _he_ owned the pictures and not someone else. In that case, not the contents of the hard drive, but the fact that he decrypted it, would have been evidence that the pictures belonged to him. And that would be self incriminating. But today, the police has actually proof that he is the owner - so the fact that he can decrypt the drive doesn't show the police anything they don't know.

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

    by Lord Apathy (584315) on Wednesday June 05, 2013 @09:28AM (#43914369)

    I've read several stories on this and here is what I take on this. Seems everyone has a different take on this.

    They have evidence that he might have been storing child on the encrypted drives. They don't have any real evidence, such as the pictures themselves, just that he might. What they have done is decrypted a weaker drive and found a file structure that indicates this. Maybe it contains links to common child porn file names and the files have been deleted and can't be recovered. All they have is the names now but no pictures.

    File names are not going to be a solid case, they need the pictures themselves. So they suspect the pictures are on the other drives. The ones they can't decrypt. So they are trying to make him cough up the password. Since they haven't arrested him that tells me they don't have a solid case.

    Seems to me that it would be in his best interest to clam up and not say a word. Any charges they can come up with to force him to decrypt those drives would be nothing compared to what he would get if they did find child porn on those drives.

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

    by Antipater (2053064) on Wednesday June 05, 2013 @09:28AM (#43914385)
    Whether or not Feldman is toast is irrelevant. If they convict him of having CP, and they do it without violating the Fifth, then kudos to them. The man isn't the issue, the rights are.
  • Re:Robin Shellow (Score:5, Insightful)

    by ebno-10db (1459097) on Wednesday June 05, 2013 @09:33AM (#43914427)
    She doesn't have to have a golden motivation to speak the truth. We're supposed to have a system of government that takes into account that almost no one has "pure" motivations. The people who wrote the Constitution and the Bill of Rights were realists, they knew that any system of government and rights that depended on "pure" motivations wouldn't work.
  • by Anonymous Coward on Wednesday June 05, 2013 @09:34AM (#43914433)

    Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed?

    A better question is should the accused be punished for not turning over the key? And the answer to that is no.

    Imagine we had this: an accused, who knows nothing about this safe made from unobtanium with an unpickable lock. Yet all evidence suggests that they should have enough information to unlock it. No matter how much you punish them, they can never give up the key, but in time, they may decide that enough is enough, and simply confess to whatever crime they are being charged with. Now I don't know about you, but that is not the kind of world I want to live in. And if we are to keep things from reaching that point, we must defend the rights of douche bags to not decrypt information.

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

    by gstoddart (321705) on Wednesday June 05, 2013 @09:37AM (#43914455) Homepage

    IE, we found stuff on one drive or in your apt or your browsing history, so your 5th amendment rights are void - give us the passwords.

    Which is what the second judge said.

    The 3rd judge came alone and said "hang on, hang on, that still violates his 5th amendment rights" and denied the order to decrypt.

    Sorry, but you're wrong.

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

    by rahvin112 (446269) on Wednesday June 05, 2013 @10:21AM (#43914935)

    Testifying before Congress is sworn testimony on the record. The transcript of that testimony can be used in a criminal trial against you and frequently has been used to convict people in the past. Only morons would help a political prosecution by testifying to ANYTHING on the record where someone has a political motive to see you prosecuted. Any attorney worth anything will tell you in such a circumstance to testify to nothing (without an agreement for immunity) because even items you believe are inconsequential can later be used to convict you.

    I might remind you that Congress was discussing who would be going to jail, this would be a politically motivated prosecution with the congresscritters looking for a scape goat to take the fall. Both Lerner and her lawyer would have been idiots to testify to anything regardless of guilt.

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

    by Nemyst (1383049) on Wednesday June 05, 2013 @11:14AM (#43915429) Homepage
    Actually, your example with 1984 and Animal Farm is precisely the issue. We make kids read them, but not think about them. I was made to read Animal Farm in high school, but after that we were asked a few largely factual questions about the book, analyzing it as a purely fictional work, and then we moved on. We didn't make parallels with politics or society. We didn't analyze the metaphors. We just read it as any other book.

    The big issue these days is that school is formed of check boxes. There's a bunch of things that are on a todo list, and once they're "done", they're off the list, with no regards for what the point of doing it in the first place actually was. Need to teach about trigonometry? Just show the functions, done. Don't try to explain what they relate to, how they work, what interesting things you can make out of them. Need to teach about politics? Bring up a few important figures, get students to read biographies and regurgitate the data in there on a test, done. It's not learning, it's ticking boxes.

Somebody ought to cross ball point pens with coat hangers so that the pens will multiply instead of disappear.

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