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Judge Rules Man Cannot Be Forced To Decrypt HD
I Don't Believe in Imaginary Property writes "In Vermont, US Magistrate Judge Jerome Niedermeier has ruled that forcing someone to divulge the password to decrypt their hard drive violates the 5th Amendment. Border guards testify that they saw child pornography on the defendant's laptop when the PC was on, but they made the mistake of turning it off and were unable to access it again because the drive was protected by PGP. Although prosecutors offered many ways to get around the 5th Amendment protections, the Judge would have none of that and quashed the grand jury subpoena requesting the defendant's PGP passphrase. A conviction is still likely because prosecutors have the testimony of the two border guards who saw the drive while it was open." The article stresses the potential importance of this ruling (which was issued last November but went unnoticed until now): "Especially if this ruling is appealed, US v. Boucher could become a landmark case. The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for the last decade arguing the merits of either approach."
Update: 08/19 23:49 GMT by KD : Several readers have pointed out that this story in fact did not go unnoticed.
Update: 08/19 23:49 GMT by KD : Several readers have pointed out that this story in fact did not go unnoticed.
Period. End of discussion. They cannot compel your testimony. Not one word can they force you to utter. It is your choice to stand mute and that cannot be used against you.
Anything more than this, compelling you to utter even a single syllable in order to prove your own innocence or guilt, and we don't live in the land of the free anymore.
This is incorrect if you are speaking of the United States.
http://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalition
http://en.wikipedia.org/wiki/PROTECT_Act_of_2003
I knew that I read this somewhere... Prohibits computer-generated child pornography when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code).
The European Union does not have a common penal code. So Wikipedia is sort of misleading on this point.. The only example in the article is Germany, and Germany!=EU.
You'd probably get thrown in jail for that, and it'll probably stick. Refusing to divulge your passphrase is protected by the Fifth Amendment, but if you give them a self-destruct phrase and tell them it's the passphrase, you have just destroyed potential evidence that is in their possession, and I'd be surprised indeed if that is not against one or more laws.
He is not the one being an idiot, you are. Do you know ANYTHING about the law?
"Don't be an idiot. Enforcing would be done exactly as it is done in any other case of someone refusing to comply with an order issued by a court. You hold them in contempt of court and lock em up until they obey or they can get a higher court to reverse. No rubber hoses required."
Not so. Physical compliance is one thing. Compelling someone to speak is something entirely different. They are different areas of the law, and covered by different parts of the Constitution. Further, once again: this has to do with the 5th, which prevents compelling someone to testify against himself. AND, as I mentioned elsewhere, there are MANY perfectly legitimate reasons why someone would not want -- very much not want -- the "authorities" to access their files, even if there is nothing illegal in them!
("Gee, let's see... I am a border guard, and I have this bogus "do not fly" list, consisting largely of people who are political activists... let's accuse him of child pornography and see what's in his secret files!")
If you think that scenario is unrealistic, then you have not studied your history.
"But since the testimony of two sworn peace officers will almost certainly convict beyond a reasonable doubt in the absence of any defense, going that route is a sure fire path to a "pound me in the ass" federal prison."
Bullshit. In order to convict on "say-so" only, the two witnesses would have to be VERY credible. If I were a juror, it is unlikely I would vote to convict without physical evidence. And as for being credible witnesses, especially when it comes to identifying children on grainy video... heck, it's a stretch even calling most border guards "law enforcement"!
By the way, I should mention that a couple of years ago, the Supreme Court ruled that in order for something to be judged "child pornography", it must be proven that (1) it is actual pornography, and (2) that the subjects are actual children. Good luck proving those with no videos. Do you think the guards recognized those particular children? Do you think that they names and addresses were flashed on the screen? I doubt it.
"Basically this guy is saying "That laptop over there doesn't have anything illegal on it. Those pigs are just lying ignorant bastards who wouldn't know a playboy bunny shot from japanese tentacle porn. But you guys on the jury are just going to have to trust me on that..."
Yep. And that is enough, legally and Constitutionally. As it should be. You don't seem to appreciate how horrifically "the system" could be abused, if we did not have such safeguards. History is full of such stories... are you going to be one of those people doomed to repeat history because you did not bother to learn it? I hope not.
-- "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." - Benjamin Franklin