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Forced to decrypt harddrive

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  • It's completely reasonable that someone might not care to disclose that they can bypass your security, and request that you bypass your security instead.

  • Nobody should be forced to help prosecute themselves. The prosecutor ought to have to make his case as if the defendant is on Mars.

  • by Jane Q. Public ( 1010737 ) on Monday January 23, 2012 @10:06PM (#38800199)
    TFA gives a woefully incomplete account of one of the prior cases it mentions. That is the one regarding the man coming across the border who had child pornography on his laptop.

    It was ruled that he had to provide the password to an encrypted area on his hard drive, because Customs had already seen some child pornography on his computer, in the encrypted portion of the drive. The decryption software was running at the time, so these files were open and 2 Customs agents were able to see them. But somehow the man then managed to turn off the computer so the files could no longer be accessed.

    The key thing here is that the court did not want the password in order to perform a SEARCH. It was already known that there was illegal material there. That is a FAR different situation.

    In its ruling, the court clarified this fine but important point: the government normally cannot force someone to provide an encryption password, in order to search for suspected items or material. That would constitute a clear violation of the 5th Amendment.

    However, in that particular (and somewhat unusual) case, the government already knew that there was illegal material, and where it was. It was just needed as court evidence. There could be no violation of the 5th Amendment in that particular situation, because it amounted to seizing illegal materials that were already known to exist. It was not a "search" in any reasonable sense of the term, and so the defendant was not supplying anything incriminating that was not already known. He was not "testifying against himself" in other words.

    But other courts have made this VERY clear: except under very unusual circumstances, rendering your password up to authorities is most definitely "testifying against yourself", and falls under the 5th Amendment. They cannot demand that information in order to search for evidence that might incriminate you.
    • by sjames ( 1099 )

      There was still a bit of sophistry there. If they REALLY had solid evidence the material was there, they wouldn't need to look again (unless they're pervs). If they didn't have that solid proof, then they were conducting a search. Theres a LOT of things people "know" but can't prove. Usually it involves tinfoil hats.

  • While it would seem onerous, it might not be a bad idea to create an incredibly long passphrase (one that can't possibly be memorized) for any stuff you don't want others to get (regardless of who they are) and record it on some media (crepe paper perhaps?) that can be quickly and easily completely destroyed.

    If you don't have the passphrase, you can't be forced to decrypt the data or reveal the passphrase

    Too onerous you say? try a long prison term...

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