Forgot your password?
typodupeerror
The Courts Encryption Your Rights Online

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."
This discussion has been archived. No new comments can be posted.

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

Comments Filter:
  • My goodness (Score:5, Interesting)

    by niftydude (1745144) on Wednesday June 05, 2013 @05:23AM (#43912525)
    An outbreak of common sense. I can scarcely believe my eyes.

    Now to see if it holds.
    • Re:My goodness (Score:5, Insightful)

      by Anonymous Coward on Wednesday June 05, 2013 @05:39AM (#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.

      • by rvw (755107)

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

        Now to see if it holds.

        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).

        Fear nothing but fear itself...

        Where is the leader who can make this clear? Where is the leader who can offer hope?

      • by taucross (1330311)
        Not with that attitude, it won't.
      • Re:My goodness (Score:5, Insightful)

        by ultranova (717540) on Wednesday June 05, 2013 @06:47AM (#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.

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

          by jythie (914043) on Wednesday June 05, 2013 @07:25AM (#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 @07:47AM (#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, Interesting)

            by Hatta (162192) on Wednesday June 05, 2013 @09:15AM (#43913723) Journal

            Bin Laden's stated goal [cnn.com] was to goad the US into a prolonged and expensive war that would cripple the US. He achieved that.

            "All that we have to do is to send two mujahedeen to the furthest point east to raise a piece of cloth on which is written al Qaeda, in order to make generals race there to cause America to suffer human, economic and political losses without their achieving anything of note other than some benefits for their private corporations," bin Laden said.

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

              by interkin3tic (1469267) on Wednesday June 05, 2013 @11:11AM (#43914795)
              Curious how he stated that was his goal only after it had already happened.

              Before: "We will destroy the great satan! BRING IT ON! "

              After: "Uh... we MEANT for that to happen! Ha ha! We're wasting your tax dollars! Again, that was totally our goal from the start!"
          • Re:My goodness (Score:5, Insightful)

            by Chickan (1070300) on Wednesday June 05, 2013 @09:21AM (#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:5, Interesting)

            by saleenS281 (859657) on Wednesday June 05, 2013 @10:21AM (#43914301) Homepage
            Not at all true, his ultimate goal was the downfall of the US. Just like previous to that the Taliban's ultimate goal was to get Russia out of Afghanistan. The success of his endeavor can't be measured in the scope of a decade. The results of his actions have set the US well down the path of collapse. It opened the floodgates for the corrupt among us to take every last straw of power they could and abuse it to no end. It's very unlikely we'll be able to close the spigot of unregulated executive power that DickBush exerted and ObamaBiden have extended.
        • Re: (Score:2, Interesting)

          by Anonymous Coward

          He hurt us undoubtedly, but I think you're being a bit defeatist. We can still recover from this. It's easy to blame the politicians (and they are scum) for their poor reactions and using 9/11 as an excuse to steal our freedoms, but the truth is that politicians in this country are still very beholden to public opinion around here. It's the people that have to turn the corner to stop this madness. If you can convince all of your neighbors that the wars on Terrorism, Small Amounts of Pot, and All Things

      • by wbr1 (2538558) on Wednesday June 05, 2013 @07:05AM (#43912891)
        You forgot one...

        "Think of all the terrorist children!"

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

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

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

        by ranulf (182665) on Wednesday June 05, 2013 @08:15AM (#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 @08:35AM (#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."
          • 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, Insightful)

              by Antipater (2053064) on Wednesday June 05, 2013 @10:28AM (#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.
        • IANAL but it's kind of walking the line of "fishing" for more more proof... perhaps they want to be able to bump up the number of charges to their accurate levels... though I don't know how you quantify charges for child p***. By Gigabyte? By number of individuals? etc. Or perhaps they suspect he's also guilty of related charges (physically interacting with kids, etc.)

          For example: you find evidence on his hard drive he murdered two people in a very specific way... congratulations, you got him on murder.

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

          by gstoddart (321705) on Wednesday June 05, 2013 @09:00AM (#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, 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.

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

            by j00r0m4nc3r (959816) on Wednesday June 05, 2013 @10:31AM (#43914407)
            This is what happens when a nation fail to educate its citizens.

            Without a doubt, this is the most important point you can make in the whole thing. I think the school system here is entirely lacking in educating people about the importance of freedom, what it is, how it comes to be, how it gets eroded, and the effects of that erosion. Sure we make kids read 1984 and Animal Farm, but IMO this doesn't nearly go far enough. There is absolutely nothing more important in our society than preserving freedom. We should have entire classes devoted to the subject. I know we teach history and civics et al.. but in my experience it's mostly just fact-learning -- dates, people, etc.. Not enough critical analysis of how all those people and events affect freedom, not enough education about what it's like to live in a non-free society. I don't think Americans in general have any idea how bad it can get, and how easily that badness can seep in, and how hard it is to get it back
            • Re:My goodness (Score:5, Insightful)

              by Nemyst (1383049) on Wednesday June 05, 2013 @12:14PM (#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.
        • Re:My goodness (Score:5, Insightful)

          by Lord Apathy (584315) on Wednesday June 05, 2013 @10:28AM (#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:4, Interesting)

      by roman_mir (125474) on Wednesday June 05, 2013 @06:15AM (#43912687) Homepage Journal

      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.

      • 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 _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.

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

            by rahvin112 (446269) on Wednesday June 05, 2013 @11:21AM (#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.

      • by Squiddie (1942230)
        See, I think you are still wrong. The data literally does not exist in any other form but that which is under encryption. This is forcing someone to interpret data, not unlocking something. To also request documents, there must also be a knowledge that they both exist, and that they are in the possession of the person under investigation. The court does not know that he does have child pornography in the other drives, nor that they and all the data contained are his and his alone. I do not believe that the
      • 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.

        • 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.

          You are confused by two different uses of the word "evidence". The phrase "give evidence" means "give information and answer questions formally and in person in a law court or at an inquiry". That is not the same as "evidence" with the meaning "information drawn from personal testimony, a document, or a material object".

          You don't have to "give evidence" against yourself. But you can be forced to "provide things that are evidence". There is a good reason why you cannot be forced to "give evidence" against

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

          by msobkow (48369) on Wednesday June 05, 2013 @08:07AM (#43913211) Homepage Journal

          My understanding of the fifth is that it only applies to information that can't be collected under a warrant.

          For example, if you have a lockbox with incriminating documentation, and the police can provide sufficient evidence for a warrant, you can be required to unlock the box. However, you can still plead the fifth if a lawyer is asking about your "intentions" for the contents of the incriminating box.

          So I think there is a valid question of whether the FBI had the right to force the lock on "the box" of encryption if they didn't have a warrant already. That's like the police breaking and entering to seize evidence; it would be thrown out in court because it wasn't collected properly.

          They have to have evidence of a crime before they can get a warrant. But once they have a warrant, they have the right to open "the box" of encryption.

          I believe that also means they have the right to demand the keys to the box: your passwords.

    • by samkass (174571)

      The summary doesn't really do a good job of summarizing the arguments. The original question was whether or not the defendant was even the one in control of the hard disks in question. He refused to say whether or not he was even in possession of the decryption key and/or if anything on the drives belonged to him. The judge ruled that if he were forced to give up the decryption key it would prove the drives were his, and therefore the key is not simply a "lock" on evidence that he's being compelled to op

  • Rights... (Score:4, Insightful)

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

    How much cash you got? :/

  • 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.

  • Robin Shellow (Score:5, Insightful)

    by cffrost (885375) on Wednesday June 05, 2013 @06:02AM (#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.

    • I'm sure the lawyer's motivation is pure as gold.

      • Re:Robin Shellow (Score:5, Insightful)

        by ebno-10db (1459097) on Wednesday June 05, 2013 @10:33AM (#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 Alioth (221270) <no@spam> on Wednesday June 05, 2013 @06:12AM (#43912671) Journal

    Imagine we had this: an accused, who has a safe made from unobtanium (which needless to say, is as hard as Minecraft bedrock) with an unpickable lock. Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed? If this is the case, then why can't someone be ordered to turn over encryption keys in the case of encrypted data where there is a properly issued search warrant?

    • Imagine we had this: an accused, who has a safe made from unobtanium (which needless to say, is as hard as Minecraft bedrock) with an unpickable lock. Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed? If this is the case, then why can't someone be ordered to turn over encryption keys in the case of encrypted data where there is a properly issued search warrant?

      The same situation: If the police doesn't know for a fact that it is your safe and that you had access to it, and the fact that you can open it incriminates you, they couldn't force you. Imagine there's a gun inside that was used for a murder. A witness saw a person putting the gun in the safe but can't see who that was. The gun is wiped clean. It is without doubt the murder weapon, but there are no fingerprints on it that would prove who the murderer is. But by opening the safe, the police would have evide

    • You can't force someone to hand over that key. Not now and not in the past. However, the police has the right to open the safe any way they find fit if there is a search warrant. If they open the safe and you get convicted based on evidence found in the safe, the damage to the safe is yours to pay for. If they find evidence inside the locked safe, it's found in a lawful way and is admissible as evidence.

      If they opened the safe without a proper warrant, they would be liable for damages to the safe and anythi

  • 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.
    • by Nerdfest (867930)

      That assumes you have complete control over what goes on that drive as well though. Would the possibility of malware, etc, render that untrue, or irrelevant at least?

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Currently there is no child porn. It doesn't exist. Nobody can take the contents of those hard drives and display child porn. Performing a mathematical transformation on it such that it becomes child porn is producing it. If defendant is made to produce child porn, he should have immunity from the results.

    • by dutchwhizzman (817898) on Wednesday June 05, 2013 @06:56AM (#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.

      • 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.

        That's a good theory, but very unlikely that it was ever tested in court. Because as the situation stands, the police isn't going to court, they are just coming in to your house by force and all you got for not opening is a smashed door. What would happen if the police tries to get in without any success, because you happen to have a twelve inch steel door? In that case, I would think they would go to court and you would be ordered to open the door.

    • But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.

      Which is, contrary to the impression this summary gives, what I thought the sticking point was before the decryption of the first drive - not the absence or presence of CP. Once they decrypted the drive, they were (or so I've understood) able to show that the drives did belong to the accused, which hadn't established before.

    • by ultranova (717540)

      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 se

      • Imagine that it's not your house but your mind. Are you required to let the police in -

        Your house and your mind are different things. That's why there are different laws.

    • by AmiMoJo (196126) * <.ten.3dlrow. .ta. .ojom.> on Wednesday June 05, 2013 @07:38AM (#43913053) Homepage

      I have lots of old encrypted data that I no longer remember the password for. Years of mail archives made in the 90s that I can't recall now. I keep them around in case I ever happen to remember and because they are only a few megabytes.

      I also have a few old HDD lying around that are fully encrypted but which I destroyed the key files for. Formatting them takes a long, long time. Now the key is gone there is no way to decrypt them, so essentially they are full of random bytes. Lots of companies do this too, to avoid lengthy and expensive drive sanitizing.

      Merely owning or having control over data is no proof that you know how to decrypt it.

      • I have lots of old encrypted data that I no longer remember the password for. Years of mail archives made in the 90s that I can't recall now. I keep them around in case I ever happen to remember and because they are only a few megabytes.

        I also have a few old HDD lying around that are fully encrypted but which I destroyed the key files for. Formatting them takes a long, long time. Now the key is gone there is no way to decrypt them, so essentially they are full of random bytes. Lots of companies do this too, to avoid lengthy and expensive drive sanitizing.

        As you say, old data, old hard drives. It could probably be established that these files were not modified for many, many years, and that the old hard drives were not touched for many years, so your claim that you can't decrypt them would be reasonable. Or you might have purchased a used drive on eBay yesterday, which happened to be encrypted. Same thing. If the drives were connected to your computer, then it's hard to say you don't have the password.

        • Re: (Score:3, Informative)

          by Anonymous Coward

          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 Rich0 (548339)

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

          Isn't the matter of whether you know the password or not a matter of fact, and therefore a matter of a jury decision? My problem with contempt of court in general is that it is a punishment for a crime without a trial. The crime is ignoring the directives of the court, and the punishment is lifetime imprisonment, unless the judge gets bored and lets you out sooner (so it is arbitrary as well). Your guilt is determined by the judge who witnessed and charged you with the crime. At no point is a jury of yo

        • I have a computer at my house which has internal HDDs that have encrypted files, encrypted partitions,and some drives are completely encrypted. The computer is operational, and the drives mount/boot and are viewable via the OS.

          I have no clue what the keys to those encrypted drives/files might be, even though the drives are in use. How is this possible?

          1. I wanted to learn how encrypted files behaved. Could I just use the same key on an outer volume and hidden volume? Could I just copy the file or image

    • by DeBattell (460265)

      I think hard drives should be considered as an extension of your brain, and thus as protected as the content of your brain.

    • Your analysis is appreciated but, let's consider the following. I'm sure I have at least one old hard drive somewhere that I have effectively written off but I have not trashed for which I don't remember the encryption key nor have any record of the key.

      Okay, so it *is* my hard disk but I cannot decrypt it. What then?

    • by Virtucon (127420)

      You're mixing the 4th and 5th amendment rights here. The police without a warrant can assert in some cases that you allowed them into your home or to search your car. You have to be explicit and deny them access. They of course can force access into a home if there's a fear of evidence destruction or lives are threatened, the courts have ruled on that many times but stopping you on the street, say in the NYCPD pat downs is a 4th amendment problem because they are seizing you (temporary detainment) and s

  • by Millennium (2451) on Wednesday June 05, 2013 @07:11AM (#43912913) Homepage

    Decrypting a hard drive is no different from letting the police into your house for a search: something the law has the power to order a person to do, provided that the proper warrants are legally obtained. It has long been understood that this is not self-incrimination, even if evidence is later found.

    Obviously, decryption orders should be held to the same limits as any other search, with the same requirements for warrants and the same limits. It can be argued that, given the government's recent propensity for warrantless searches, people's fear is reasonable. But calling a properly-warranted and properly-limited decryption order "self-incrimination" is more than a bit of a stretch. Besides which, including it under the umbrella of searches provides new avenues through which to attack the unethical practice of warrantless searches, which must indeed be stopped.

    • by moeinvt (851793)

      I disagree. If they have a warrant, they can search the data on the hard drive by taking possession of it. The owner should be under no obligation to facilitate their search.

      If they execute a search warrant on your home, you don't have to tell them where any of your possessions are located. If you have an effective hiding place that frustrates their search, so be it.

    • by Anonymous Coward

      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

    • by Golddess (1361003)

      Decrypting a hard drive is no different from letting the police into your house for a search

      Actually, the two are quite different. A better comparison would be decrypting the contents of a physical, paper notebook. Because that is what a hard drive is, a notebook, made out of metal, and written to using magnets.

      I honestly do not know how the law treats physical, paper notebooks that cops cannot read (though I know my own feelings on the subject), but we really need to stop comparing encrypted data to locked doors, locked safes, and other such objects.

    • Decrypting a hard drive is no different from letting the police into your house for a search

      Sure it is.

      The distinction here is that your home and the key to it is a physical "thing". Your encryption key is in your mind. By divulging it, you're effectively testifying against yourself.

      And as someone else already mentioned, it is not illegal to not help the police in their investigation, only to actively obstruct it. You don't *need* to let them in, they can break down your door. You don't *need* to provide them the encryption key, it's up to them to break it.

  • Even the discovery of fingerprints on a smoking gun at a crime scene does not eliminate someone's right to remain silent; so I have no idea what that "different judge" was thinking. He certainly wasn't thinking of due process.

    • If they discover fingerprints at the crime scene, with no gun present, they can get a warrant to search your house for the gun.
      • 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.

  • He shouldn't be forced to de-crypt his drives because suspected illegal material might be inside them. If police manage to break the encrypted volumes and find illegal material then they have proper reason to assume the other volumes contain the same and hence they can ask him to de-crypt them.

    I'm a little confused how anyone can see this differently, the fifth amendment is the right against self incrimination and as long as he doesn't have to open the volume when none of them have been open he hasn't i
    • by Compholio (770966)
      What if he's cheated on his taxes and his tax documents are on one of those other drives? Forcing him to decrypt the contents of the other drives could force him to incriminate himself for crimes unrelated to the original search.
  • by Anonymous Coward on Wednesday June 05, 2013 @08:22AM (#43913299)
    Here's what you do:
    1. 1) Get a stack of ~50 non-sequential, well-used one-dollar bills.
    2. 2) Shuffle them into a random order. Store them in the desk drawer next to your computer.
    3. 3) Your password to your TrueCrypt drive is the 100-digit number formed by taking the two least significant digits of each bill in order. When you find yourself starting to remember the password, shuffle the bills and change your TrueCrypt password. For maximum randomness, make sure you have 50 unique sets of digits.
    4. 4) What are the odds that a cop who finds a small stack of unmarked bills will allow them to enter into evidence? Much more likely, they'd simply vanish in the search.
    5. 5) Should they enter into evidence, what are the odds that they'll stay in order?
    6. 6) If the bills vanish, you have 10^100 possible passwords, a ~300-bit number. If they make it into evidence but scrambled, you have 50!, a ~200 bit number, as long as you made sure you had no duplicate digit sets.
    7. 7) You can always plausibly claim that either (4) or (5) happened, and thus you can't give up your password, as much as it pains your sense of justice to be unable to help the prosecutor.
  • A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.

    • A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.

      As said before, that's tough. Same if the police comes to your house with a search warrant looking for stolen goods, you can't say "sorry, can't let you in, there's a dead body in the kitchen". If the police is in a place legally, then they can use anything they can see.

  • Can't remember? (Score:3, Interesting)

    by onealone (996027) on Wednesday June 05, 2013 @08:48AM (#43913487)
    In cases like these, what's to stop the defendant from saying they don't know the password, or can't remember?
  • by Lumpy (12016) on Wednesday June 05, 2013 @08:53AM (#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.

We warn the reader in advance that the proof presented here depends on a clever but highly unmotivated trick. -- Howard Anton, "Elementary Linear Algebra"

Working...