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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.
"thousands of images of adult pornography and animation depicting adult and child pornography."
I know that TFA is about encryption and the rights to passwords but I think the phrase above is far more interesting. That quote could be misleading, but what if the Border Enforcers didn't find any photographs or videos(hell, any evidence at all)of real human child exploitation?
:)
If they are able to legally get the key and crack the drive, and all they found was animation, then maybe they should just give him a warning and and call him a "perv"...especially if he has "thousands" of files and not a single one is "real".
By the way, those of you who fantasize about your wife or girlfriend in a schoolgirl outfit are also pervs
Turn *off* your laptop before going through customs.
Turn off the GRUB menu and change the default key combination to have it come up.
Have a WinXP install to boot up into and set it as the default boot option.
Strong cryptography is lovely but it is not for idiots.
How we know is more important than what we know.
In any case, it is good to see judges in the US (or anywhere else) making into the news for taking the right stand regarding governmental search limits.
From TFA :"Orin Kerr, a former Justice Department prosecutor who's now a law professor at George Washington University, shares this view. Kerr acknowledges that it's a tough call, but says, "I tend to think Judge Niedermeier was wrong given the specific facts of this case." "
The phrase "given the specific facts of this case" gives me chills in this context. As we all know, kiddie porn is, along with terrorism and drugs, one of the three Prime Evils of American jurisprudence and public opinion, the unholy trinity that justify any and all measures in their eradication.
In short: Why, why does our potential landmark 5th amendment case have to be a kiddie porn case? I'm no fan of child pornography; but it would be an absolute disaster if, thanks to the vociferous moral condemnation that such a case always involved, we end up setting a dangerous precedent concerning the 5th amendment and crypto keys/passwords.
I think it involves no hyperbole to say that the crypto key issue is probably the most important 5th amendment related question that technology has yet raised(mindreading tech will probably top it, when it becomes available). I'd hate to see this be yet another decision chiseling away at our constitution, just because some punk likes kiddie porn.
Seriously, are the editors asleep?
This story from last December had the exact same article. This was noted in the firehose entry, and somehow this still got posted. I thought that kind of thing was a major purpose of the firehose?
WTF
Considering that the constitution provides that he shouldn't be forced to incriminate himself, it is definitely good news that the Judge didn't try to rewrite the constitution. It's high time that we start holding the judges who disagree with this concept accountable.
or that they aren't open to people at that level
If someone like the NSA knew how, I doubt they would let that information leak without a really, really good reason. And "think of the children" doesn't count in that arena.
which is nice.
At least, it's good to know. :)
If it's not true, then the defendant can just turn around and offer the keys to the volume and get the cops in trouble for perjury. I doubt he's innocent, but if he is this could be one of the most satisfying court cases in the history of geekdom. Defending your right to encryption and then catching two police in a blatant lie? Priceless!
Good things like this only happen to bad guys because that's where the infringement on rights starts. You don't infringe a soccer mom's right to privacy, you infringe the creepy mexican guy who likes to watch child pornography. Once his rights are infringed and the courts have set a precedence, then you can infringe the soccer mom's rights all you want, it's now legal! Defending society's rights requires defending them for every member, the scum included.
First of all, let's stop pretending that this has anything at all to do with "child pornography".
The justice department was just trying to get some case law saying an individual could be forced to relinquish his password, and by using "child pornography" they thought they could bully some judge into betraying the Constitution. It's a good sign that those sons of bitches lost, too.
And ultimately, torture doesn't work. Eventually, a society that violates basic human rights so blatantly will fall, and often (but not always) the perpetrators end up on the other end of the see-saw. Then, it becomes harder to find people who will obey orders to torture. We in America will eventually learn that it was a huge mistake to forsake our principles and become a torture regime. But, I can only hope that Bush, Cheney, Gonzalez and others will face the music. There's no guarantee that justice moves quickly enough to give that kind of satisfaction. But move it does - and inexorably.
You are welcome on my lawn.
In short: Why, why does our potential landmark 5th amendment case have to be a kiddie porn case?
Because the prosecutors ALWAYS go after the least-sympathetic scumbag they can find (or create the appearance of) when trying to establish a break-the-bill-of-rights precedent.
In the case of trying to clamp down on new forms of speech, press, or association this is USUALLY a child pornography or child molestation case.
Once they've got the precedent in place they can go after the real target: Anybody they don't like.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
I fail to understand how a court can't order the asshole to produce the data.
Because the data is in his head, not on a physical document. If he had written it down the court could order him to hand over the hardcopy. But if they could order him to divulge the contents of his memory to be used as evidence against him they could do it, not just for passwords, but for anything else. (Like: "Did you kill Jane Doe?") The famous part of the 5th Amendment expressly prohibits that.
What would "enforcing" such an order consist of? Torture. That's WHY it's prohibited.
This case is going to come down to two sworn officers asserting they saw kiddie porn on exhibit A, the laptop. Almost any jury is going to be willing to accept that as proof beyond a reasonable doubt considering the defense could rebutt by simply unlocking the laptop and proving their innocence.
It's not up to the defendant in a criminal case to prove his innocence. It's up to the prosecution to prove his guilt. Are the officers such experts in video synthesis and manipulation that they can determine, at a glance, that the images were of actual children? No? Tough luck. If that's all they have I'd expect the judge to direct the verdict or throw it out for lack of evidence.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
First of all, let's stop pretending that this has anything at all to do with "child pornography".
Thank you Pope Ratzo!
Any time the government wants to remove one more right from you, the test case will always be a charge of child pornography or terrorism. But it's not like the precdent will be "only for accused terrorists" - it will be used for anyone. Even if it were, accusing your political opponents of being pedophiles or terrorists in order to use the "special case" laws against them has been done throughout recorded history. It's not exactly hard to put encrypted child porn on a seized laptop after the fact, if you're willing to break a law to get a conviction!
Socialism: a lie told by totalitarians and believed by fools.
The reason to want to be anonymous is not cowardice. The reason is that the repercussions are not acceptable.
This myth was dispelled long ago, one example is gorilla warfare. Europeans thought it cowardly to hide from your opponents instead of facing them openly on a field of battle. It wasn't cowardly, it was tactically sound.
The same is true of avoiding prosecution by unjust government and preventing those whom you are criticizing from discovering your loved ones.
The difference between the AC and the non-AC? The AC legitimately believes there are people out there fear. The non-AC just likes to talk conspiracies.
Personally, I just think our government lacks the resources to track individual slashdot posters on a routine basis... so far.
Sounds good, but I think the estimate was that there's at least 10,000 federal laws -- and so no single person could possibly know them all.
So while the police are combing through your hard drive, and while they don't find any child pornography, they DO find a picture of you holding a baby bird -- and it turns out that some 1856 law made illegal to handle this type of bird without a permit. And here's evidence of you violating the law.
Or, perhaps they don't find any child pornography ... until they scan every sector on the disk and find some thumbnail of some picture of a naked 8 year old girl that was deleted 18 months ago. If they'd dug deeper, they might have learned that that was from getting redirected to a child pornography site in Romania by some typo-squatter, which you immediately closed and never visited again -- but the DA is up for re-election, and he doesn't want to give up this new feather in his cap, the child pornographer he just took off the street. He doesn't care that you're innocent, only that you're helping prove that he's tough on child pornography.
No, cops and vampires are best not invited into your home, or your hard drives. Even if proving perjury is `priceless'. (And really, it wouldn't prove perjury. The cop would just say `I guess I was mistaken. My bad.' Though he probably wouldn't even say that.)
"Eventually, a society that violates basic human rights so blatantly will fall..."
Historically speaking, the societies that have violated basic human rights lasted far longer than those that did not.
A state run society may be bad for an individual, but it's often pretty good for the stability of the society as a whole.
The president of what?
Well there's your problem. You used an amateur. Try getting a professional to do it. I guarantee you'll change your opinion.
I find it sad that most everyone discussing this topic feels compelled to add in a condemnation the pornographers as if otherwise people would suspect them of being one. We can discuss murder and other heinous crimes without needing a disclaimer.
Not that I'm defending child pornographers in any way.
Waterboarding's not so fucking bad, eh? Then why is the US even using it? And if amateur/non-hardened terrorist types like you and your buddies are able to easily withstand it, then what good is it as a form of torture? (Note that John McCain flip-flopped and voted *for* waterboarding even after he denounced it.)
Regardless, torture is considered a lossy means of extracting information from interrogation subjects. Because with the threat of imminent death (e.g. repeated waterboardings, with the drowning response telling your body that you're about to die), you'll do anything to save your life, won't you? Like making shit up. (Of course, making shit up is just what the US did to get us into the Iraq war in the first place.)
I'd be unsurprised to learn that waterboarding is a kind of red herring - there are many far more simple, painful and damaging techniques that our rendition and torture outsource partners (and let us not forget contractors) are all too willing to employ. That's what you can do when you partner with dictatorships in a war on terror.
O lord, bless this thy holy hand grenade, that with it thou mayest blow thine enemies to tiny bits, in thy mercy.
I fail to understand how a court can't order the asshole to produce the data.
They can and they did. They have physical custody of the hard disk on the laptop, and it's been examined with a fine-toothed comb. They've had the data to do whatever they want with it. The fact that the data is not in a form useful to the government's case is not the defendant's problem. Compelling the defendant to provide testimony to *make* it useful to the government is a breach of his Fifth Amendment rights.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
There is a BIG f*cking difference there,hoss. if you refuse to open a safe,then they can whip out a blowtorch. refuse to open the trunk,make a call to the locksmith. In this case it is them saying "Open this box so we can put you in jail forever,and if you don't we'll put you in jail forever." See how either way you go it ends with "put you in jail forever"? That was the WHOLE POINT of having the fifth,so we wouldn't be put in positions like that.
And do you think that,oh I don't know,they just happened to get lucky in finding a perv without the password? Do you honestly think they haven't run into this situation in the past with a drug runner or gun smuggler? Of course they have. They didn't try this sh*t because they knew it wouldn't fly. Pedo is the commie of the 21st century,don't you know that? Because they know they can pull sh*t that would get shut down with any other kind of criminal,but guys like you will yell "Get the pedo!" and let them do whatever they want to the perv.
I have a buddy in the state police and have helped him out from time to time. Believe me,these guys? not real hard to catch. They crave that nasty crap like I crave my first morning cigarette. Do you honestly think if they let this guy go that he will NEVER look at little kid pics again? Or that it would be hard to get a judge to sign off on monitoring his Internet connection based on the testimony of two border cops? Of course not,but that isn't what they want. A precedent doesn't have a "only useful on pedos" clause,and after FISA and warrantless wiretapping do you REALLY trust the bozos in power with even MORE?
I don't give a diddly damn if he has the greatest pervo collection in the entire history of pervs,forcing someone to give them the rope to hang them with is just wrong,which is why the founding fathers put the fifth in there in the first place. But go ahead,scream "get the pedo!" all you want, because with crap like the FBI setting up fake kiddie pron sites and not bothering to check referrers,all it takes is one rickroll and folks will be screaming for YOUR head on the pike. But as always this is my 02c,YMMV
ACs don't waste your time replying, your posts are never seen by me.
They tell you that, but in actual fact it's closer to having to prove you guilty of being suspected of ...something. Then your entire life is put under the microscope until they find some evidence (real or circumstantial) of some level of wrongdoing which then gives them the mandate to lock you up until they can find/misinterpret something to keep you pretty much indefinately.
Oh wait, you were talking about the US, not the UK. I'm sure that your law enforcement agencies are far more responsible and less petty than ours. I mean we can't both be ruled by security services that act like playground bullies can we?
'Don't worry' said the trees when they saw the axe coming, 'The handle is one of us.'