Mass. Supreme Court Says Defendant Can Be Compelled To Decrypt Data 560
Trailrunner7 (1100399) writes ... Security experts have been pounding the drum about the importance of encrypting not just data in transit, but information stored on laptops, phones, and portable drives. But the Massachusetts Supreme Judicial Court put a dent in that armor on Wednesday, ruling that a criminal defendant could be compelled to decrypt the contents of his laptops. The case centers on a lawyer who was arrested in 2009 for allegedly participating in a mortgage fraud scheme. The defendant, Leon I. Gelfgatt, admitted to Massachusetts state police that he had done work with a company called Baylor Holdings and that he encrypted his communications and the hard drives of all of his computers. He said that he could decrypt the computers seized from his home, but refused to do so. The MJSC, the highest court in Massachusetts, was considering the question of whether the act of entering the password to decrypt the contents of a computer was an act of self-incrimination, thereby violating Gelfgatt's Fifth Amendment rights.
The ruling.
I lost the password (Score:5, Funny)
Re:I lost the password (Score:5, Funny)
I lost the password (Score:5, Insightful)
if it's good enough for the IRS....
Re: (Score:3)
Re:I lost the password (Score:5, Interesting)
Not only that either.... he admitted not only that he COULD but, that the communications that they were looking for were, indeed in those encrypted volumes.
As I understand, previous arguments and rulings have centered upon the idea that decrypting data would potentially give away information that the police didn't have already: like that you have the key and are associated with the contents.
If the police find a USB key in my drawer, and I refuse to talk about it, they only know that I posessed it. They don't know whats on it...or that I actually know whats on it. For all they really know, it could be an empty encrypted parition that I setup and lost the key to (yes, I have done this a coupel of times), it could even be a drive someone asked me to hold onto.
OTOH if I give them that information, then they can connect me directly with the unencrypted data, this makes a good amount of sense in that case.
Re: (Score:3)
Re: (Score:3, Interesting)
Re:I lost the password (Score:4, Insightful)
Can they compel you to unlock a safe? A safe Deposit box? While authorities can get into these without your help, what if they couldn't?
Electronic information is directly analogous to paper. Information is information regardless of how its stored.
Re:I lost the password (Score:4, Informative)
Re:I lost the password (Score:5, Insightful)
But having opened the safe, can they force you to 'decode' the entries on a paper document which are written in a code or cipher? If not, then they should not be able to force you to decrypt an electronic document which is written in 'code'.
Re: (Score:3)
They can indeed compel you to unlock a safe, just like they can compel one to hand over documents during discovery.
Not if it has a combination lock. Under some circumstances, that is.
See, a lot of people here aren't getting what this is about. The 5th Amendment, and how it works.
You cannot be compelled to produce knowledge -- "a product of the mind", as the courts put it -- if that could incriminate you. That includes an encryption key or a safe combination.
But what many people don't seem to get here, and what many people find strange, is that this only holds if the contents are unknown. If the contents are alr
Re:I lost the password (Score:5, Insightful)
Re:I lost the password (Score:5, Interesting)
No, as the series of court rulings have gone, the Fourth Amendment does not protect you from lawful search and seizure (such as a safe or hard drive). The combination to the safe, or encryption key to the drive, is not incriminating evidence and providing it to allow for lawful search and seizure does not violate your rights. They can admit evidence produced by oneself into court (such as two sets of books in one's own handwriting for a case of fraud) and that is not a violation of the Fourth (or Fifth) - just so with information one puts on a hard drive. What they can not compel one to do is testify against oneself (which is the Fifth by the way) nor assume guilt because you do not take the stand (not that a prosecutor won't toe that line with the jury). So, if one can keep all details of a crime in one's head and manage to destroy all other evidence which could be subject to lawful search and seizure - then you've got a shot at being a criminal mastermind.
I'm not sure I entirely agree with the line of thought - but I can certainly follow the logic as well as the precedence.
What would be interesting is if one's pass-code was material evidence with respect to the case - but a possible way around that would be limited immunity or ruling it as inadmissible evidence...It would make for an interesting case study.
Re:I lost the password (Score:5, Informative)
No, as the series of court rulings have gone, the Fourth Amendment does not protect you from lawful search and seizure (such as a safe or hard drive). The combination to the safe, or encryption key to the drive, is not incriminating evidence and providing it to allow for lawful search and seizure does not violate your rights.
In most circumstances, this is just plain false. As explained (but not very well) in TFA.
Unless it is already known "with particularity" that the drive or safe contains some specific illegal or incriminating material, a judge cannot compel someone to hand over a decryption key or combination. Because those are the only circumstances that would not compel him to incriminate himself. This has nothing to do with the Fourth amendment at all, it's just the Fifth.
Having said that: if they have probable cause or a warrant, they can force open a safe without violating either the 4th or 5th Amendments. The 4th only requires probable cause, and it doesn't require the suspect to incriminate herself, so the 5th isn't violated.
However, with decent encryption there is no way to do that with a hard drive, so the circumstances are very different and the 5th Amendment comes into play. The court cannot compel speech, or "a product of the mind" like a combination or encryption key, if in doing so the individual would incriminate himself. The exception -- the ONLY exception -- is when specific evidence or illegal material is already known to be inside, "with reasonable particularity" as the courts have put it. ONLY in those circumstances is a suspect not being forced to incriminate himself. (And of course if the court did compel disclosure, and the material in question turned out to not be there after all, then the witnesses who said it was would be in some very serious trouble.)
Simply suspecting something is inside is not sufficient. Probable cause is not sufficient. It is a far higher standard of evidence.
Re: (Score:3)
Re: known data isn't there (Score:5, Interesting)
All this is making me start to think of some kind of more clever "panic mode" encryption.
You'd have to make it really fast, such that it's reg proto-encrypted two ways, one normal, and the panic mode. So say something really fast like shift-control-alt-F11 instantly flips the "panic bit".
We as geeks could put all kinds of awesome stuff into it, smashed into a kind of digital Klein Bottle with milk for Schrodinger's cat.
"Do you know how to decrypt it?"
"No"
"Why not?"
"Because it's time-locked with a code that cannot be found until next September."
"Do you know what documents are on there?"
"The ones you are looking for are not there because they were broken into component parts that only the computer knows, tied to a code that September code. Meanwhile other documents you did not know were there, are there, because they were created by algorithms the moment I hit the Panic Button and not a moment before. And the base of the September key is an English phrase which may or may not admit a crime. You don't know."
"So what if the case is dismissed?"
"I can do other work until September. What's important is that it cannot be broken right now."
Re: known data isn't there (Score:4, Insightful)
All this is making me start to think of some kind of more clever "panic mode" encryption.
You'd have to make it really fast, such that it's reg proto-encrypted two ways, one normal, and the panic mode. So say something really fast like shift-control-alt-F11 instantly flips the "panic bit".
We as geeks could put all kinds of awesome stuff into it, smashed into a kind of digital Klein Bottle with milk for Schrodinger's cat.
"Do you know how to decrypt it?" "No" "Why not?" "Because it's time-locked with a code that cannot be found until next September." "Do you know what documents are on there?" "The ones you are looking for are not there because they were broken into component parts that only the computer knows, tied to a code that September code. Meanwhile other documents you did not know were there, are there, because they were created by algorithms the moment I hit the Panic Button and not a moment before. And the base of the September key is an English phrase which may or may not admit a crime. You don't know." "So what if the case is dismissed?" "I can do other work until September. What's important is that it cannot be broken right now."
In my opinion, that likely wouldn't work. Contrary to what you might see on TV or in movies, courts are not generally impressed by technicalities or deliberately unproductive cleverness. Consider the recent Supreme Court ruling against Aereo. The Court was entirely unmoved by the technical argument that the way Aereo implements their service is "basically like" individuals using antennas. They ruled that *overall* Aereo was obviously acting as a rebroadcaster, by taking in broadcast signals and sending them live to a large number of customers and charging for that. The notion that they don't charge for the broadcast, just the rent for the antenna was similarly unconvincing to the Court. Courts tend to look at net results, and less the technical path to achieve it. In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
Most judges and most courts do not consider the law to be a game that people can attempt to create exploits for. Exploiting loopholes in the law is one thing: doing so with an obvious willful intent to subvert the court tends to be looked upon extremely unfavorably. Judges have significant latitude to deal with people they think are trying to do that.
Re: (Score:3)
The court cannot compel speech, or "a product of the mind" like a combination or encryption key, if in doing so the individual would incriminate himself. The exception -- the ONLY exception -- is when specific evidence or illegal material is already known to be inside, "with reasonable particularity" as the courts have put it.
In this case, the defendant admitted the encrypted data is communications with someone who is not his lawyer, and the state showed that those communications are likely to be evidence in this case. So, this time, the ruling is correct.
If, however, the defendant had an encrypted file and the state had no knowledge of what might be in it, then the mere fact that it is encrypted is not probable cause to issue a warrant to compel the release of the password.
Re: (Score:3)
It's not so clear cut.
They generally can't compel you to turn over your encryption keys so they can go on a fishing expedition through your encrypted hard drive, looking for evidence with which to proceed... but they can compel you if they know you have specific evidence that they will find (ie they saw kiddie porn on your PC before you closed it and it required a password to log back in)
Re: (Score:3)
Re: (Score:3)
Yes, but how many people are using 4.1a from what....10 years ago? Almost everyone would be using a newer and (from the evidence provided by the Dev) compromised version.
Pardon me. Brain fart, as they say. I meant 7.1a. That's the one being audited, and it has turned out okay.
Re: (Score:2)
This is, essentially, the crux of the issue - are encrypted records and passwords the analog of combination locks on safes?
Re: (Score:2)
Yes, legally you must... Now if they cannot read what you wrote, who's going to know?
Re: (Score:2)
Re: (Score:3, Informative)
She personally didn't lose the e-mail and much of it has already been recovered.
Re: (Score:3)
Yes that is why they found an email from Lois Lerner requesting that Senator Grassley be audited.
Re:I lost the password (Score:4, Insightful)
Re:I lost the password (Score:4, Insightful)
It's worth noting that the EPA also has a recent history of remarkably convenient hard drive crashes affecting an ongoing investigation.
Sarbanes-Oxley made it very clear that this shit doesn't fly for companies. You produce the records, or you get serious legal punishment (one of the few corporate cries that can land the CEO in jail, in extreme cases). No excuses accepted.
Why doesn't the government impose the same standard on itself? Yes, that was a rhetorical question.
Re:I lost the password (Score:4, Insightful)
BUT it does raise a perhaps more important question...
IANAL, but I believe the IRS can audit you after up to 6 years. Bearing this in mind, and the fact that I think it is highly unlikely that they would accept the excuse of "I only have a 6-month retention policy on my receipts" as sufficient to allow you to get away without providing the relevant documentation, it does lead me to wonder... If they are forcing and enforcing long retention policies on those that they serve, why do they get away with only having to accommodate a twelfth of the retention period themselves?
Re: (Score:2)
She may end up there, but I'm guessing she was not the one who ordered the drives destroyed (at least she didn't document the order).
Same lie, two people, different outcome (Score:5, Interesting)
Judge thinks you are lying. You're a geek, who presumably knows how to secure information on a computer. You saying "I lost the data" is equivalent to saying "My whole life is a lie and I don't actually know how to do any of the things I always talk about." Bullshit. You didn't lose the data. Your RAID6 didn't have a three-drive failure, and your backups weren't untested.
Same judge can think Lerner is telling truth. Lerner is an administrator, and she uses an iPhone and thinks the "e" on her desktop is the Internet, Her saying "I lost the data" is equivalent to her saying "I think the car's oil might be low, but I haven't looked. but the problem really could be oil, because I read a story in Readers Digest about a couple who saw some smoke coming out their hood, and when they finally got to town for someone to check it out, it turned out they were low on oil!" Her act is consistently dumb enough that no dumbness could be out of character.
When Lerner is asked the airspeed of an unladen swallow, she smiles helplessly, shrugs, and says "I don't know. What did you swallow?" When you're asked, you smugly immediately instinctively counter with "African or European?" and when the judge says "European," your eyes suddenly dart around and you say, unconvincingly, "Uh... I don't know anything about swallows."
Re:Same lie, two people, different outcome (Score:5, Insightful)
> You saying "I lost the data" is equivalent to saying "My whole life is a lie and I don't actually know how to do any
> of the things I always talk about." Bullshit. You didn't lose the data.
Funny you would say that because.... you know I have a bunch of encrypted partitions, some of which I actually can't open. Some of it is encrypted with keys that I deleted because they were not needed. For example I have one particular one I can't open, because I never saved the key....it was only a temporary place to pull some data off encrypted tape to search for something.... after I no longer needed it, I just unmounted it. At the time I meant to go back and look for more, I never did, then I forgot the key....big deal....I have the tape still.
Course, I could never prove to anyone else that the data in there is the same as is on the tape....but.... frankly, that wasn't one of my concerns when i created it....I just didn't want to write it all to unencrypted disk and leave it sitting there.
I also have a few emails encrypted to my pgp key from the 90s. I can't seem top decrypt my key even though I thought i remembered the password. I only keep it around because someday I might guess right and there would be some minor use to having it.
Guess my whole life is a lie because I lost some data. I better go resign my day job right now!
Re: (Score:3)
> You said you deleted the unneeded data, therefore you didn't lose it, you disposed of it.
Yes, however the point remains that it means I have encrypted data that I can't decrypt; for really no nefarious reason and no lie. Its there, its encrypted, there does exist a key that could turn it back into the data that was.... but I could neither decrypt it nor prove it matches that other data that I can decrypt. Best anyone, even a forensic investigator could do is take my word for it.
Really in the end, the o
That's a nice tax bracket you have there... (Score:4, Funny)
That only applies to people who have no authority that could ever possible impact the judge in question.
"That's a nice tax bracket you have there... it'd be a shame if it got audited for the last seven years, and every year from here on out, into the foreseeable future"
Except, of course, they have to prove you can (Score:3)
I mean, all you have to say is that you lost the actual key and cannot comply.
Re: (Score:2)
Sure, but lying is perjury. He shouldn't be compelled to incriminate himself according to the fifth amendment.
Re: (Score:2)
Again, I said they'd have to prove it, not that there wasn't leverage available.
The dog ate my homework. (Score:2)
I mean, all you have to say is that you lost the actual key and cannot comply.
Didn't work for Calvin. It won't work for you.
The lie ends in a citation for contempt and a stay in a Ricker's Island holding cell until your memory improves, or hell freezes over, whichever comes first.
Re:Except, of course, they have to prove you can (Score:5, Interesting)
From TFS:
He said that he could decrypt the computers seized from his home, but refused to do so.
Just because he was a dumbass doesn't mean the rest of us have to be.
But let's say you want to be honest - here's a conceptual idea:
Encrypt your stuff on a drive with two-factor auth. The first is a key that expires after x number of days, renewing the expiration every time you access it (let's say 3 to 14 days, tops.) The second factor is a passphrase. Shouldn't be hard to cook up if you use a high-bit-count SSL certificate as your key, and the encryption software checks the date. Keep the key on a separate but random-looking USB stick, SD chip, whatever. When you're not using it, stick it in a camera, unused smartphone, or similarly hidden. To prevent BIOS/EFI tinkering, insure that the encryption software double-checks that the system time is within the window (between last successful access and new expiry date) on boot, and destroys the key if the date is outside that window. Same with insuring that the HDD is in the same hardware it originally sat in, destroying the key if the software detects that a series of MAC addys and serial numbers don't match up.
After the keypair expires (after all, you've been in jail all this time and unable to access it, so...) you can truthfully say that the data is unreachable by any means (though I do suggest that your statement not end with the phrase "...so suck it, copper!") Of course, this means *you* can't access it either, but one would hope you had a backup of the data stashed somewhere beyond the reach of a warrant or the authorities' knowledge, yes?
Fun mental exercise either way. :)
Re: (Score:2)
Destruction of evidence is a separate crime, and simply having some type of electronic dead man's switch on it does not get one off the hook.
Re: (Score:2)
True - you could say it was put into place to prevent corporate espionage, but that would be a toughie to sell.
Re:Except, of course, they have to prove you can (Score:5, Interesting)
Destruction of evidence is a separate crime, and simply having some type of electronic dead man's switch on it does not get one off the hook.
A self-destroying/expiring system is not illegal.
But the real problem with Penguinisto's idea is it won't work. When computer equipment is seized; the power is immediately removed, and the software can do nothing.
Power removal and system reboots are common enough, that there's no way the only copy of important data is in RAM; although, even if there is, authorities might attach a Firewire/PCI/Thunderbolt device, and use Inception to RAM dump the lower 4GB to write-only media.
Which brings me to the next point..... after the seized computer is shipped to a lab; the first thing they will do is remove the storage media from the computer, hook it up to a Write blocker (Which is a special hardware dongle that is inserted into the I/O path and blocks any Write operations, Security commands, or other destructive messages from being sent to the hard drive), before powering the system back on, booting from a read-only USB stick, and dumping a complete backup image of the entire disk to archive.
In the event that there is an ATA security lock/ATA password setup on the drive; the lab can disconnect the normal disk drive controller, and attach a custom one. If this is an encrypted SSD; they will have equipment and details from the drive manufacturer (obtained under lawful order), required to read the keys off the controller's PRAM chips.
They can also, lift the platters out of the drive, and have those imaged --- in case they suspect attempt to overwrite files with all zeros.
In short: The idea of using two factor in software with expiring keys for data stored on a HDD is extremely naive, if you think a LEO's lab will screw up and lose the data because of it.
Your only chance is if you have a really tamper-resistant HSM with a self-destruct mechanism, and the LEO cannot identify the manufacturer, or work out how to safely get in; considering the fact, forensic labs have many advanced diagnostic tools available that can be used to analyze unknown media modules, and chances are good they can cut in and analyze the logic and data stored on even so-called tamper proof electronics...
Re: (Score:3)
Re:Except, of course, they have to prove you can (Score:5, Informative)
http://forensic.belkasoft.com/... [belkasoft.com]
"Solid State drives (SSD) introduced dramatic changes to the principles of computer forensics. Forensic acquisition of computers equipped with SSD storage is very different of how we used to acquire PCs using traditional magnetic media. Instead of predictable and highly possible recovery of information the suspect attempted to destroy, we are entering the muddy waters of stochastic forensics where nothing can be assumed as a given."
Re: (Score:3)
Re: (Score:3)
Wouldn't work.
Reason?
It's standard forensic practice to make bit level copies of media and examine the copies, not the original material. Your software can do anything it wants to with the USB stick and an overwrite simply means that a new copy is made from the original (using software and hardware under the investigators control) and they get to try again.
Re:Except, of course, they have to prove you can (Score:4, Informative)
To prevent BIOS/EFI tinkering, insure that the encryption software double-checks that the system time is within the window (between last successful access and new expiry date) on boot, and destroys the key if the date is outside that window. Same with insuring that the HDD is in the same hardware it originally sat in, destroying the key if the software detects that a series of MAC addys and serial numbers don't match up.
This wont work, because you do not control the software used to decrypt it. If you are using a standard cipher (and you really, really should be using a standard vetted cipher), they will us their own decryption software that neither cares about certificate expiration nor about the new BIOS on the lab image that theyre using.
No "time expiring" crypto method that actually works has been devised, most probably because it literally cannot be done in a secure way. The attacker controls the decryption software and the hardware-- not you.
Re: (Score:3)
He should have remained silent. Being a lawyer he should have known that.
Sometimes lawyers think they're smarter than the average person in matters of law, and often in demonstrating their 'prowess' end up proving that they're not. It happens.
Re:Except, of course, they have to prove you can (Score:5, Insightful)
As an accused boot-licking pro-establishment government-and-big-business shill, I agree.
As a relatively sane individual who tends to think for myself, I also agree.
As someone with passing familiarity with 4th-amendment case law, I also agree.
This guy was a first-class idiot. An encrypted hard drive is little different from a locked safe. A court can order you to open it to reveal evidence, but the police need sufficient probable cause to convince a judge to issue that order. Saying "All the evidence is in there and I have the key" is pretty convincing probable cause that there's important relevant evidence in the safe (or disk). Saying nothing is a good way (and the only really safe way, as far as I know) to ensure that you're not giving the cops any additional assistance in proving your guilt.
Re: (Score:3)
Or, maybe, he was just trying to create a precedent for the rest of us, huh? Some people are willing to die for the freedom of others, whereas this guy merely risked legal troubles... Neah, nobody but an idiot would do such a thing...
Re: (Score:3, Insightful)
An encrypted hard drive is entirely unlike a locked safe. It is much more like a notebook kept in a private code: if I write "June 26: red green Q 17 x-ray romeo eagle" in my journal, the state has no rightful authority to compel me to tell them what that means to me.
Re:Except, of course, they have to prove you can (Score:5, Insightful)
He should have remained silent. Being a lawyer he should have known that.
He must be a pretty shite lawyer. (Hopefully he isn't a criminal defense lawyer, because then he really IS a shite lawyer.)
FTFA:
“During his postarrest interview with State police Trooper Patrick M. Johnson, the defendant stated ... ‘[e]verything is encrypted and no one is going to get to it.’ The defendant acknowledged that he was able to perform decryption.”
What a dumb-bumble-fark. He deserves to burn for bragging/taunting the cops.
Rules for Talking to Cops
Re: (Score:3)
Out of interest - what makes a lawyer so special that he can talk to the cops? Are lawyers vaccinated against cop-tricks or something?
Lois Lerner Method (Score:5, Insightful)
Re: (Score:2, Insightful)
You don't get to take the 5th, apparently. The cops have the computer in their possession.
So, they will detain you until you provide the information they require to convict you.
But if they have to, they'll convict you of failing to provide the information they need to convict you, and then continue to detain you.
"Ense petit placidam sub libertate quietem " (By the sword we seek peace, but peace only under liberty)
Except when we don't.
Papers please, comrade. Cooperation is mandatory.
Re:Lois Lerner Method (Score:4, Insightful)
Except that thats not the ruling, and in your rush to karma-whore you apparently did not read the story. The reality is more nuanced than that, but of course reality gets fewer insightful votes than regurgitating nonsense about authoritarianism.
Ruling doesn't change much. (Score:5, Informative)
If you read the ruling, the court admits that the only reason they said the defendant could be compelled to decrypt his data was because he had already admitted to the police that he was involved in the case, and that the details of his involvement were on the hard drive. I'm sure if he had kept silent the entire time and told them nothing, it would've been a different story.
Re:Ruling doesn't change much. (Score:4, Funny)
You would think a lawyer would know better than to talk to the police.
Re: (Score:3)
If you read the ruling, the court admits that the only reason they said the defendant could be compelled to decrypt his data was because he had already admitted to the police that he was involved in the case, and that the details of his involvement were on the hard drive. I'm sure if he had kept silent the entire time and told them nothing, it would've been a different story.
I don't agree. Even if he admitted he as involved, giving up any evidence of his involvement is self-incrimination. They don't know how much he was involved and his evidence would show that. Obviously if he gives it to them, it will show exactly what he was doing, thus proving he was guilty, which would be self-incrimination if he gives it.
They need to prove he broke the law with other evidence, then what he has encrypted, because legally, they aren't allowed to have him give up the info.
Re:Ruling doesn't change much. (Score:5, Informative)
You may not agree, but it seems to be well established in law that once you admit to the crime and identify the existence and location of evidence, you've waived your 5th Amendment right.
Re: (Score:2)
The ruling (from accounts) seems to be separating the providing of the password from the contents of the drive - which is an unreasonable search. If they already know what he's done from what he's said, they could easily give him immunity for anything else found on the drive except what backs up what he's already said - then there's no 5th violation.
Als
WTF? How is this not self incrimination? (Score:2)
Next stop, SCOTUS and get new lawyers if they don't want to take you there.
Re:WTF? How is this not self incrimination? (Score:4, Insightful)
It's not self-incrimination in the same way that the intersate commerce clause gives the Federal government the power to regulate absolutlely anything that might have any impact on interstate commerce even if it never leaves your house.
That is, it's clearly a blatant violation of the Constitution, to everyone but lawyers.
Re: (Score:2)
He already incriminated himself when he told the cops that there was evidence on the encrypted drives.
Important Caveat (Score:5, Informative)
Haven't read the entire ruling, only scanned it, but there is an important caveat in it:
We now conclude that the answer to the reported question is, "Yes, where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators."
Seems like this guy has said "I did this, this, and this, and these files show that, but I don't want to let you see them", and the Court has ruled that he has to, because he's already admitted to those things, and therefore he would not be incriminating himself in doing so.
Of course, the reality may be that there's evidence of further illegal activities that he hasn't admitted to in the encrypted files. That might make the case for self-incrimination. I'd have to read the full ruling to see what, if anything, they said about that possibility.
Re: (Score:2)
But in making such an argument, wouldn't he then be admitting them, thus invalidating the case for self-incrimination? Sure, it's a catch-22 (and therefore should not be true), but the judicial system doesn't seem to care about that anymore...
Re: (Score:3)
Just doing a little digging into the details of the 5th Amendment in practice, and found this interesting tidbit:
The Court acknowledged that it is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the Privilege against Self-Incrimination when questioned about the details.
That could very well apply in this case, so that even if there is additional evidence in the files beyond what he has admitted to, the moment he started admitting to some of it, he effectively waived his self-incrimination right.
criminal defense attorney and programmer here (Score:5, Informative)
This is why you don't talk to the cops, especially if you find yourself in the fortunate situation of having illegally acquired 13 million dollars and encrypted all of the evidence. If you say nothing to the cops, you win. The only way you lose is if you brag to them about how awesome a job you did at getting away with the crime.
The people up here who are saying "tell them you lost the key" "tell them it was scrambled not encrypted, etc" are all idiots. Lying to the cops is a crime. Telling them nothing is the superior response.
Cop executing search warrant: "it's asking for a password"
Def: "I want a lawyer, I'm not talking to you"
Cop: "You encrypted it, didn't you?"
Def: "lawyer lawyer lawyer"
Cop: "We'll just get a warrant anyway and you'll go to jail. Help us help you."
Def: "did't you hear me? I want a lawyer"
That being said, I'm in FL so I'm covered by the 11th circuit ruling. Either way, silence is golden. I'd say that at least 30 percent of my cases would have turned out much better if clients hadn't consented to searches, admitted to elements of crimes or just generally blabbed when they should have remained silent.
Re: (Score:3)
Precisely. There's several copies of a prominent law professor's lecture on the subject and spells out PRECISELY why you don't do things like that.
https://www.youtube.com/watch?... [youtube.com]
Now, the burning question would be, "how did they get access to his encrypted system files?"- without a warrant, they're just as screwed in light of the recent Supreme Court rulings. You need a warrant for those things- and you need to state you're looking for a specific on them before they can legitimately reach the conclusion
Second key (Score:2)
Re: (Score:2)
In fact, there are multiple ways of handling schemes such as that. Different passwords may decrypt to partitions that are empty, only contain your benign data, only contain your incriminating data, or may erase everything. Decrypting a partition that is empty or erasing everything is a pretty obvious ploy, but if you actually keep your benign data on a partition separate from the incriminating data, it'd be a lot harder for them to prove anything.
Next stop contempt (Score:2)
He'll have to call their bluff by not providing the password, and they'll probably hold him for contempt. Then there will be a public opinion campaign to have him released.
Digital vs Physical (Score:5, Insightful)
If it had been the exact same situation, just a combination lock on on physical file cabinet in his office, once a proper court subpena was issued Law Enforcement might have asked for the combination as a courtesy but would have been perfectly within their rights to simply cut the thing open. And if they found evidence of some unrelated crime, that is long been fair game just like a drug bust during a traffic stop.
Maybe it's different by State, I dont know
Re: (Score:3)
The difference is that a locked file cabinet is trivial to circumvent without the cooperation of the key or combination holder. Once they had the warrant the police wouldn't bother with the courts, they would hire a locksmith or some other such expert to break open the cabinet or safe. Apparently the encryption on the hard drive in this case is much more difficult if not impossible for anyone at the state level to break it within a reasonable time period. So to avoid waiting 5 years and spending lots of
Re: (Score:3)
The only difference appears to be that the LE agency involved purports to be incapable of 'cutting the lock.'
Well that and the unwise statements made to police by the defendant voluntarily. It would be interesting if
Re: (Score:3)
It would be interesting if a similar case could be constructed with an un-cuttable physical lock, but of course such things do not exist...
They do, if you have a sufficiently booby-trapped safe. If broken open, it destroys the contents.
Re: (Score:3)
So whats the case law on keys (Score:2)
Has anybody else been compelled to give up a physical key or did they just get a warrant and use a locksmith? Seems this is the digital equivalent but the state is bitching that since the locksmith is to expensive and takes to much time so they need different rules.
Re: (Score:3)
Re: (Score:3)
A better analog might be, suppose someone said in testimony
Could they then be compelled to provide the location if police searches turned up a blank? Seems like they could.
Of course, if you are willing to go to jail and wait it out, the "compulsion" is never forever, Seems like that might depend on just what's in those documents.
Comment removed (Score:5, Insightful)
Re: (Score:3)
Plausible deniability (Score:2)
Re: (Score:3)
Exactly - another key sentence in there is:
"In the Commonwealth's view, the defendant's act of decryption would not communicate facts of a testimonial nature to the government beyond what the defendant already has admitted to investigators. As such, the Commonwealth continues, the defendant's act of decryption does not trigger Fifth Amendment protection."
So if he had not admitted anything already and had refused to decrypt, the ruling may have been different.
Re: (Score:2)
In other words, he "testified" on the matter, and thus could not claim 5th midstream.
Re:The relevant part (Score:4, Insightful)
So if he had not admitted anything already and had refused to decrypt, the ruling may have been different.
That is irrelevant. The question at hand is whether or not the Government can force you to provide evidence against yourself in a criminal case. Now I'm just a stupid immigrant, but my understanding from the 5th Amendment is that nobody "hall be compelled in any criminal case to be a witness against himself". I don't care how much the police think they know. If they need his harddrive, their case is not solid and the suspect should not be required to provide incriminating evidence.
Being forced to provide evidence against yourself pretty makes it the Soviet Republic of Massachusetts.
Re: (Score:3)
Re: (Score:3)
from what I've read, the interpretation is that you may not be forced to _create_ evidence that may be used to convict you at the request of a government entity. Answering a question from a government employee is creating statements that didn't already exist. Filling out a form is creating documents that didn't exist. Evidence that they already have can be followed up. Evidence that is known to already exist can be demanded (blood samples, DNA samples, papers in a safe), and the fifth won't help because you
Re: (Score:3)
As a lawyer he should have known better (Score:5, Informative)
He did not have to tell the police anything here, he has probably lectured his clients many times on exactly why they should never talk to the police, does not matter if you have nothing to hide, does not matter if you think you have done nothing wrong, and if you have done something but think you can talk your way out of it you are a fool. Ask for your lawyer then shut your mouth, and do not answer any questions, I dont care if they ask you about the weather, the reply is 'ask my lawyer.'
From the language used in the opinion, if he had simply shut his mouth and not started bragging/volunteering information, he would be in a very different situation today.
Re: (Score:2, Funny)
So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)
Guess I'm safe then. My decryption key is "testimony". Lowercase, no special characters or digits.
Not far wrong. (Score:2)
So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)
The roots of the privilege against self-incrimination lie in use of torture to extract confessions, but judges remain firmly convinced that all relevant evidence should be admissible in court. They do not like carving out exceptions.
Re: (Score:3)
The difference here is that the key is theoretically in his mind and so he would have to participate in providing that; hence why it's generally been found that keys can be compelled but combinations on locks can't and similarl
Re: (Score:2)
Seems like he had already incriminated himself when he talked to the cops. That's a strange thing for a lawyer to do to begin with...
Re: (Score:2)
Nice try, but if the Fifth Amendment does not apply in Massachusetts, then the Eight wouldn't apply either.
Re: (Score:2)
The difference is they can physically open the safe. They may lack the ability to decrypt your stuff.
This is the difference between what they can get on their own with a warrant, and what they would need to compel you to help them with.
And I have a hard time seeing how compelling you to provide them with information they don't have and can't get on their own isn't go
Re: (Score:2)
IANAL, but the government can open the safe themselves, but I'm not sure that they can "force" you to open your safe. Same thing with the encrypted drive; the government is free to spin their wheels trying to figure out their keys on their own, but they can't force the key from you directly.
Re: (Score:2)
You do not have to participate in the opening of your safe. A locksmith or torch can do that without you.
Your encrypted documents, on the other hand, may not be crackable without your help.
Note that courts seem to feel that Iris-scans, fingerprints, etc., are not "testimony," and so are not protected. That's something to keep in mind if you wanted to purely rely on biometric keys for your encryption.
IANAL, and this is not legal advice.
Re: (Score:2)
That's pretty edgy and cool but it's also completely wrong. Read the decision. Let's start with the simple notion that the Fifth Amendment protects you against self-incriminating testimony, but it is not an absolute bar against all kinds of self-incrimination. The court can still compel you to provide non-testimonial aid in their prosecution of you. For instance, the court can get a blood test to show that you were drunk while driving, or swab your cheek to test for DNA, get an example of your voice to play
Re: (Score:2)
Tell me this again in 10-15 years.
Because the way we're going, I have little faith any of this will be true by then. Governments are increasingly deciding the law means whatever they decide it means.
Would I love to be wrong? Absolutely.