US District Ct. Says Defendant Must Provide Decrypted Data

An anonymous reader writes "If you're planning on traveling internationally with a laptop, consider the following: District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case. Laptop searches at the border have been discussed many times previously. This is the case where a man entered the country allegedly carrying pornographic material in an encrypted file on his laptop. He initially cooperated with border agents during the search of the laptop then later decided not to cooperate citing the Fifth Amendment. Last year a magistrate judge ruled that compelling the man to enter his password would violate his Fifth Amendment right against self-incrimination. Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents." sohp notes that "the order is not that he produce the key — just that he provide an unencrypted copy."

5th Amendment

FTA:

Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive.

I don't know anything about the 5th Amendment, but I was under the impression that it was way stronger than this quote suggests. Just because I admitted that it's my laptop, I now can't take the 5th? In movies at least, that's not how it works :-)

Imagine if you treated the 1st Amendment the same way... we'd be in serious trouble. "By admitting that you have an opinion contrary to the government, you gave up your rights to free speech".

Re:5th Amendment

By living in this country, you hereby have been co-operating with the government, and have therefore waived all your rights.

I only wish I was joking more than I am...

Re:5th Amendment

Also if the defendant is not required to provide the encryption key/password, but an unencrypted copy, what's to keep them from providing a "sanitized" copy - how do you check if it's the same bunch of files if you can't see the encrypted data?

Re:5th Amendment

exactly. or, as I thought to myself when I initially read this:

"Why not just lie and provide a bunch of mundane TPS reports? They shouldn't be able to tell what the encrypted files are, it's mathematically infeasible to solidly prove that one way or another."

Whats on the laptop, son?

When asked at the border what that huge suspicious file is on your laptop, do you answer..."

"I don't know, its a encryption contest. First person to decrypt the file gets $10,000."

"Its a raw rendered animation. I am preparing my portfolio to send to Pixar."

"Its a wadfile I'm assembling for an open source game file."

"It's a dump of an old VAX proprietary database that my boss wants me to port to SQL."

"Its a gig of encrypted kiddie pr0n."

Think carefully now...

Re:5th Amendment

If the files were encrypted, there's no way the police could have identified any of the files. It was his fault for helping the police in the first place.

You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

Re:5th Amendment

What is needed is a destructive decryption program that produces files with innocent .zip or .rar file extensions that "decompress" into benign images or other files while destroying the original data. Unless the file is renamed and then opened with the appropriate program, no data is available.

All defaults would appear "wholesome",

The Thought Police request access to your flash drive. You hand it to them without comment, they open the files which display innocent images you personally selected beforehand. There is no steganography, the data is lost.

Re:5th Amendment

You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

obligatory quote

There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.

The Ammendment

I don't know anything about the 5th Amendment

Here's the full text:

Amendment V
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.

I wonder, which part of "nor shall be compelled" did the honorable judge not understand?

Re:The Ammendment

The guy gave the police his laptop, and cooperated with them. If I open a diary, during a border crossing or car search or what ever, and the cop sees evidence that I killed someone, they can get a subpoena for the book and I can't invoke the 5th. I already showed it to them. If this guy had kept his mouth shut to start with, not shown the police any part of the encrypted drive, he would be fine.

The 5th is not an on-and-off right. You can't get on the stand at your own trial to testify in your own defense, and then start invoking the 5th when the prosecutor asks questions you don't like. The same here, he gave them the computer, they saw the data. He can't say, after that, "Sorry, I'll take the 5th, you can't see the computer again."

Re:5th Amendment

It wasn't just that he admitted that it was his laptop; he actually opened the Z drive for the border agent who then saw evidence of child pornography. This is like you standing at your door and saying, "Of course you can come in and search my house, officer." Once you've done that, you can't really take the 5th with regard to the illegal items they find in that search.

And before someone raises the issue, the decision should come down differently if the illegal goods were found in your roommates room and you had no way of knowing that he possessed these items.

Re:5th Amendment

IANAL, but I imagine there is a distinction between 'self-incrimination' and 'providing evidence.'

Since he has already admitted that the laptop is his and he is responsible for storing pictures in the encrypted section, the barrier between convicting him and not convicting him is merely whether the photos are retrieved. This could just as well be done by technological means (hypothetically!) as having him give up the password.

The reason for his having a right to retain the password is because this essentially admits his possession and access to the encrypted data. Forcing him to provide it is forcing him to prove his guilt, which is obviously self-incriminating. But since he has already given that testimony, now the password is just a barrier to material evidence the court would like to collect.

Re:5th Amendment

Courts have ruled before that you can't take the 5th to refuse to unlock a safe that you own. The reasoning is that the information you're providing - the combination to a safe, or in this case a decryption password - could never be incriminating in and of itself. It's the same reasoning that they used when they decided that the 5th doesn't give you the right to refuse to disclose your name. Now, if he had wanted to claim that the encrypted files weren't his and he didn't know how they got on his laptop, then providing the password COULD potentially be incriminating, because it would be evidence that the files were indeed his. But now that he has admitted to owning the files, that scenario is no longer relevant.

Re:5th Amendment

You can take the 5th all you want. You can't take it on what you've already admitted to. He said its his laptop, and he said Z: is an encrypted partition where he stores the images. The image files names from recent documents looked like child porn. That got them a warrant. He refused to cooperate with the warrant. The judge said you can't take the 5th on whether those pictures are there, since you admitted it. Since they are there, you must cooperate with the warrant and let us see them. You don't have to testify as to the password, but you DO have to use it to show us the files.

How is this over turned.

I didn't RTFA, but the summery says "the man had waived his right against self-incrimination when he initially cooperated with border agents"

You still don't have to turn over your encryption keys he waved his right to the 5th, it doesn't apply to the rest of us, we can still say no.

Initial cooperation

So if you initially cooperate, you can no longer claim 5th amendment protections? Hmm... you "initially cooperated" with the police when you said what your name was. You can no longer claim the 5th amendment. Slippery slope anyone? (Good thing I'm not American)

Re:Initial cooperation

No. If you show the border agents the encrypted kiddie porn on the hard drive, you cannot later claim that being forced to give them a copy of that same kiddie porn would be a violation of your 5th amendment right.

Misleading topic

"US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."

e.g. it isn't so much of an issue with what the court order asked of the defendant, but rather, an issue of if he waived his rights.

basically, don't cooperate with the police/feds/border agents to start off with. plead the fifth no matter what.

then what proof?

So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?

Waived his right against self-incrimination...

... when he initially cooperated? That's like saying that you wave your right for freedom of speech if you shut up for a moment.

RTFO

Seriously people, read the court's opinion. Nowhere does the court say it finds he has waived his Fifth Amendment rights because of his initial cooperation. Instead, the rationale is that because the government is already aware of what is on the hard drive (the border agent saw suspicious file names and then apparently saw actual images of child pornography while reviewing the computer when it was turned on), forcing him to hand over the documents is not a self-incriminating act.

Further, because they are documents already existed, they are not "testimonial" in themselves. The Fifth Amendment concern is with forcing the person to hand over the documents, because doing so may in effect be self-incrimination because the person is being forced to admit either that they have the documents or that the documents are real and exist. Neither of these is an issue, because the government already knows the documents exist and are real, and the defendant admitted to having them on his computer.

So, to sum it all up, the conclusion is not that the defendant has waived his Fifth Amendment rights, but rather, that forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.

Whoops

sohp notes that "the order is not that he produce the key â" just that he provide an unencrypted copy."

Of course, that's putting the cart before the horse.

This probably won't fly in the SCOTUS. Even if it did, it would be quite impractical to enforce.

Take for example, a suspected drug dealer. He cooperates a bit with the police who want to search his house. They find no illegal substances. But they saw an empty baggie sitting in a drawer. They tell him to hand over the stash, because they know he has one. Without the stash, they have no case. He refuses. Eventually it gets to the point of the court telling him to "hand over the stash". Therein lies the problem. Without the stash, there can't be any charges. So he conveniently says again "I have nothing to show you." What will they do? Hurl insults at him? Even if there was some way they could get him in jail, the accused would be better off taking 6 months for contempt of court or obstruction of justice (really tenuous) than 99 years for having the stash.

This case is similar. The cops saw the images, then turned off the computer, which required a passcode for them to regain access. Now he's been ordered to produce an unencrypted copy of the data for them to use against him (not his password). I fail to see how those two are separate. Unless he has an unencrypted copy of the hard drive somewhere, this is going nowhere fast. Why? "Gee, your honor. With all of the stress of being in court and all, I seem to have forgotten the password to that hard drive. In fact, I don't remember what's on it, either."

They need the porn for to convince the jury beyond the shadow of a doubt. The cops might be able to testify they saw something, but for all a jury knows, they could be lying, or they may not be remembering things clearly. What will likely happen is that the SCOTUS will say "You can't retract self-incriminating evidence you provided on your own, but you can refrain from providing any more at any time. If the police are careless with evidence, you don't have to give them more of it."

He let the cat out of the bag.

I read the case. At the border, on request of the Immigration and Customs Enforcement people, the guy decrypted his (he admitted possession) laptop's Z drive and let the border agent have a look. The border agent saw probable cause to believe that the guy had illegal images stored on his computer.

Now the guy is claiming that he can't be made to provide (once again) an unencrypted copy of the Z drive because the act of producing the unencrypted Z drive would tend to incriminate him.

The "act of production" is the key thing. The Fifth Amendment affords zero privacy protection for hard drives (look to the Fourth Amendment for that). If the act of production would tend to incriminate you, then the Fifth Amendment may be asserted.

The government won with the "cat is already out of the bag" attack. A higher court had already accepted that defense in a similar (non-computer) case. The District Court followed the reasoning in that case.

This is a grand jury proceeding--not a criminal case. The government has submitted that it will not use the defendant's act of production against him when they prosecute him.

I expect that this case will be finally resolved in the Court of Appeals.

He hung himself when he decrypted the disk and showed the computer to the border agent.

 

Re:One word:

That question was posed at a conference at my university with some cryptographer. He grabs a piece of paper from his notes, tears a strip about three inches long up, and rolls that up. He takes a dry-erase marker from the board and colors the end red, tossing it at one student.

"What's this?" the student asked.

"That's your child's pinky. Now what's your password?"

Re:We need a destruction password in crypt!

IAAL and this does not sound like a good idea.

In a forensic situation the first thing which would be done is an image of the system.

Sure imaging is not feasible for border patrol style searches, but if it is a CP or terrorism case, odds are the police would have taken a backup of your machine to start off with.

Giving them a self-destructive code would likely achieve nothing in the circumstance other then land you in further trouble (for obstructing a police investigation, lying, misleading the Court etc...) - even if the original charges and allegations are later proven to be false.