U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment 417
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."
My goodness (Score:5, Interesting)
Now to see if it holds.
Re:My goodness (Score:5, Insightful)
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: (Score:3)
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?
Re:My goodness (Score:5, Insightful)
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, Funny)
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?
Sarah Palin?
Ouch! Stop punching me!
Re:My goodness (Score:5, Funny)
Sarah Palin?
Ouch! Stop punching me!
You brought her into this, you'll have to make her stop.
Re:My goodness (Score:5, Funny)
And you thought that Michael was the funniest Palin :-P I bet he really hates her for being so much more Monty Python than the origin Monty Python Palin.
Re: (Score:2)
Re:My goodness (Score:5, Insightful)
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)
Re:My goodness (Score:5, Insightful)
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:4, Interesting)
By any measure, Osama won on 9/11.
How about measuring him by his own words and stated goals? The man's whole dream for the Middle East went up in a puff of Arab Spring. "His" own people rejected his methods and goals.
Re:My goodness (Score:5, Interesting)
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.
Re:My goodness (Score:5, Interesting)
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)
Re:My goodness (Score:5, Interesting)
Re: (Score:2, Interesting)
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
Re:My goodness (Score:5, Funny)
"Think of all the terrorist children!"
Comment removed (Score:4, Funny)
Re:My goodness (Score:5, Insightful)
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)
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.
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)
Re:My goodness (Score:5, Informative)
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)
Re:My goodness (Score:4, Insightful)
Re:My goodness (Score:5, Insightful)
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: (Score:3)
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)
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)
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, Informative)
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)
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)
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)
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 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)
"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)
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)
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: (Score:2)
Remember: The police have no interest in proving innocence, only in proving guilt.
Everything they say, everything they ask, it's all designed to prove guilt. You only have to use one wrong word and you're in for a miserable time. The police love it when people protest their innocence and/or try to explain things away, it just gives them more ammunition.
Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").
Re: (Score:2)
Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").
For which, no doubt, you'd be charged with the local equivalent of driving without due care and attention.
Re: (Score:2)
Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").
"I don't know, officer" is effectively an admission of guilt. If you don't know your speed, you are basically acceding to the officer's 'evidence' that you were speeding. That is why, as you say, it's far better to say nothing. If he has valid evidence, then you're going down. If not, then you walk.
You don't want to appear rude to the police if you can avoid it, but you need to be careful to not answer any question, direct or otherwise, with anything but verifiable facts (ie. your name, address, etc). It do
Re: (Score:3)
The first question is the only one that matters, and you don't even have to ask it: If you're being held/detained, then they have to read you your rights (unless you're a terrorist apparently).
Not quite. If you're arrested they have to read you your rights. If you're being detained (which they can do without transporting you while investigating if they do in fact need to arrest you) then you still have the right to remain silent, but they have no obligation at that point to inform you of that right. This is entirely separate from a consensual encounter in which you are free to go, though they'll usually game those so that you are free to go by the letter of the law but you get the distinct imp
Re: (Score:3)
Re: (Score:2)
Re:My goodness (Score:5, Informative)
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: (Score:2)
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)
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.
Re: (Score:3)
It's hiding in plain sight, in the part of the Fifth Amendment most armchair lawyers don't bother reading:
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
Re: (Score:2)
Anyway, here's the good news: I'm selling these awesome protective tinfoil hats, for $20, a real bargain!
Re: (Score:3)
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)
How much cash you got? :/
The United Kingdom generously offers... (Score:4, Informative)
...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)
"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: (Score:2)
I'm sure the lawyer's motivation is pure as gold.
Re:Robin Shellow (Score:5, Insightful)
To play devil's advocate... (Score:3)
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?
Re: (Score:2)
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
It's not the case (Score:3)
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
As usual, rubbish article (Score:5, Informative)
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: (Score:2)
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)
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.
You don't have to open the door (Score:5, Insightful)
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: (Score:3)
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.
Re: (Score:3)
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.
Re: (Score:2)
Re: (Score:2)
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.
Re:As usual, rubbish article (Score:5, Interesting)
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.
Re: (Score:3)
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)
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.
Re: (Score:3)
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
Re: (Score:3)
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
Re: (Score:2)
I think hard drives should be considered as an extension of your brain, and thus as protected as the content of your brain.
Re: (Score:2)
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?
Re: (Score:2)
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
Re: (Score:2)
You don't have to provide keys\combo for a safe, you don't have to open your door, and you don't have to give out your encryption keys to your hard drive.
But can you - should you - be charged with obstruction and/or held in contempt of your court if you don't?
When I read about this story before, I thought the sticking point was not "whether or not any of the drives had any CP" but "do the drives belong to the accused?" They were only able to establish that to a high degree of certainty after decrypting the first hard drive.
Can't say I agree with this one (Score:4, Interesting)
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.
Re: (Score:2)
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.
Re: (Score:2)
Can they force you to open a safe?
Or to use a car analogy; can they ask to unlock the car door?
They're pulling the wool over the judge (Score:2, Informative)
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
Re: (Score:3)
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.
Re: (Score:3)
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.
Re: (Score:2)
Re: (Score:2)
So which part of my post did you miss: the part where I insisted that these searches need to be properly warranted, or the part where I asserted that warrantless searches need to be stopped? Admittedly, I didn't mention the need for individualized suspicion as I normally do, but even without that, I in no way called for your straw argument of absolute ubiquitous search powers.
What were they THINKING? (Score:2)
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.
Re: (Score:2)
Re:What were they THINKING? (Score:4, Informative)
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: (Score:3)
They can't force you to do anything. You have a right to remain silent and uninvolved.
If they have a warrant, they can kick the door down and whomever is found guilty of the crime becomes liable for the damages incurred during the warranted search.
Re: (Score:3)
Can they make you unlock the door to the room where the chimney is instead of having to blow the door up?
Good question. What would "make you unlock" mean? They can't hit you until you open it. They can only take you to court. If it is a normal door, the judge would say "don't bother _me_, just kick the door in". Even then, the judge cannot "make you unlock" the door. He could put you into jail until you unlock the door, but he can't make you unlock it.
Your Crazy (Score:2)
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
Re: (Score:3)
A way to genuinely be unable to decrypt your HD (Score:5, Interesting)
Re:A way to genuinely be unable to decrypt your HD (Score:5, Interesting)
What if there is evidence of murder on his drives? (Score:2)
A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.
Re: (Score:3)
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.
Re:What if there is evidence of murder on his driv (Score:5, Informative)
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.
Can't remember? (Score:3, Interesting)
He will be replaced soon. (Score:4, Insightful)
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: (Score:2, Funny)
Re: (Score:2)
This doesn't make sense. Random bits are of the same as bits that can be decrypted. To follow your reasoning, taking a picture and slicing it in to tiny jigsaw piece would be equivalent to blank paper and bottles of ink.
Re: (Score:3)
I would wager that the quantity of child pornography that he possesses could determine what extent his final charges are, yes? Therefore, wouldn't it make sense that he would further incriminate himself by giving up that information? So it makes sense to me that he should still retain that protection.
Further evidence is incriminating, absolutely. But it is not self-incriminating. If the police ask him "is there CP on that encrypted drive", answering "yes" would be self incriminating. To see the difference between "incriminating" and "self-incriminating", a very simple test: If he says "I am guilty", and a policeman says "he is guilty", is it the same thing? No. One is a confession, one is just an unproven statement. So if he said that, it would be self incriminating. If he decrypts the hard drive, or a
Re: (Score:3)
They guessed his password. It clearly took several months, meaning they were probably using a hybrid dictionary attack.
Crackers can guess several hundred passwords per second on AES256 encrypted TrueCrypt containers. If his password was a bit dumb (or if it was similar to his Windows login, or some other cached login), it might be easier to guess.