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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
Border guards testify that they saw child pornography on the defendant's laptop when the PC was on
wow, so cops testify that it's true? that's good enough for me!
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Is this the MPAA? Is this the RIAA? Is this the DMCA? I thought it was the USA!
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.
Here, we have a story which is not only over 8 months old, but is also a dupe. That has to be some kind of a record.
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.
Because if your rights and freedoms do not stand up when applied to the worst of the worst then they most likely won't stand up when applied to you.
How we know is more important than what we know.
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).
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.
So what if I made my pass phrase the confession to some minor crime and then confessed the fact? Wouldn't that make it a more clear-cut fifth amendment issue as revealing my pass-phrase would be directly incriminating?
-Dave
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.
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.
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.
I'm going to kill the president.
My other car is first.
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
Well there's your problem. You used an amateur. Try getting a professional to do it. I guarantee you'll change your opinion.
May I speak for all of us when I say "We wish you the best of luck!"
zosxavius photography