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US District Ct. Says Defendant Must Provide Decrypted Data
An anonymous reader writes "If you're planning on traveling internationally with a laptop, consider the following: District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case. Laptop searches at the border have been discussed many times previously. This is the case where a man entered the country allegedly carrying pornographic material in an encrypted file on his laptop. He initially cooperated with border agents during the search of the laptop then later decided not to cooperate citing the Fifth Amendment. Last year a magistrate judge ruled that compelling the man to enter his password would violate his Fifth Amendment right against self-incrimination. Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."
sohp notes that "the order is not that he produce the key — just that he provide an unencrypted copy."
FTA:
Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive.
I don't know anything about the 5th Amendment, but I was under the impression that it was way stronger than this quote suggests. Just because I admitted that it's my laptop, I now can't take the 5th? In movies at least, that's not how it works :-)
Imagine if you treated the 1st Amendment the same way... we'd be in serious trouble. "By admitting that you have an opinion contrary to the government, you gave up your rights to free speech".
changing your mind is forbidden?
I didn't RTFA, but the summery says "the man had waived his right against self-incrimination when he initially cooperated with border agents"
You still don't have to turn over your encryption keys he waved his right to the 5th, it doesn't apply to the rest of us, we can still say no.
So if you initially cooperate, you can no longer claim 5th amendment protections? Hmm... you "initially cooperated" with the police when you said what your name was. You can no longer claim the 5th amendment. Slippery slope anyone? (Good thing I'm not American)
So once you waive your rights, you are not allowed to re-invoke them?
This case will probably hit the SCOTUS.
It will be a case to watch, that's for sure!
Visit the Arcade Restoration Workshop @ http://www.arcaderestoration.com
I see it all the time when someone decides when and where to stop answering questions and pleading the fifth amendment. This judge can't see beyond his desire to see evidence exposed. Dangerous.
"US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."
e.g. it isn't so much of an issue with what the court order asked of the defendant, but rather, an issue of if he waived his rights.
basically, don't cooperate with the police/feds/border agents to start off with. plead the fifth no matter what.
Where is the "Ignorant" mod tag?
The computer has been in evidence and out the control of the defendant, so... "I forgot the password".
I hope this caused some synapses to fire.
So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
He's still being compelled to provide evidence against himself, so I don't see how the fact that he initially cooperated waives his fifth amendment rights.
Simple, "The fifth amendment protects witnesses from being forced to incriminate themselves". There is no need for further explanation..oh wait...maybe it should read "The fifth amendment protects witnesses from being forced to incriminate themselves unless we say otherwise"
Guy walks through a security checkpoint in an airport.
Hello sir. May see ID?
Here you go.
Thanks. I see you have a backpack, may I check it?
Sure, no problem.
Oh, I see you have a laptop. I want to see what you have on it.
No, sorry, the material on it is personal. If you try and push me I can easily claim the 5th Amendment.
Ah, but you cannot because you initially cooperated with me when I asked for ID and wanted to searched your bag.
---
I know this isn't exactly what's going on here, but how long until it is?
Obviously I don't support child porn...but it seems like all this guy needed to do is obfuscate the encrypted files so that they don't look like encrypted files.
Steganography
Is "I forgot" or "I never knew the password in the first place" considered a valid defense? One of the problems with compelling people to produce passwords is that it assumes they know the password. Spending months in jail for failure to produce information you don't know would really suck.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
If I let a cop into my house, I do not have to give him permission to look into my bedroom or allow him to look in my dresser. So, how is that different from letting someone into my computer, but locking them out of particular directories or files?
Suppose the cops want to search my house without a warrant. Stupidly, I let them, and they don't find anything. Now a week later they want to search again, and I deny them entry. Following this decision, since I waived my rights when I co-operated once, I have to co-operate again. WTF?
Never cooperate at any level to any investigator ever for any reason. I don't care if your as clean as the pope, never cooperate ever! Don't answer any questions don't say yes or no don't say anything but "I want a lawyer present for any questions".
I always set my password to "confidential". Then when they ask me what my password is, I can truthfully reply, "It's 'confidential'!" And when they try to put me in jail, I can truthfully say, "I told you what my password was!" (True story: many years ago, the admins at Amdahl UTS sent out an email to all developers stating "We've changed the root password for the system and we can't tell you what the new password is because it's a secret". I of course immediately tried logging in as root using variants of "asecret" for a password, and sure enough -- it worked!)
I've abandoned my search for truth; now I'm just looking for some useful delusions.
I seem to recall something like this happening way back in the 1970s - of course it didn't involve computer porn. But in that case, like this one, a person who initially cooperated with an investigation was not allowed to later reverse course and plead the 5th.
As soon as you've answered one question, I think you've essentially waived that particular right - assuming you were read your rights before any of this happened, of course.
#DeleteChrome
... when he initially cooperated? That's like saying that you wave your right for freedom of speech if you shut up for a moment.
1's and 0's should be free.
As a reminder, never ever EVER volunteer information to the police. Get a lawyer, ALWAYS.
This was linked on Slashdot once before:
"Don't Talk to the Police" by Professor James Duane
The policeman perceives his job as to "make arrests", and the DA's job is to "make convictions". They (mostly) care only that tey have an ironclad case, and not whether or not you are innocent.
Sounds like he didn't have much of a choice. If it was in fact forced cooperation, wouldn't that fact have had precedence over everything else? Especially to tell him now that he cooperated a little he has to testify against himself (by providing the decryption key).
Don't get me wrong, child pron is indefensible and I personally feel he should be put in jail, but prosecuting him in this way opens up a kind of a slippery slope and I'd hate to see a precedent set. I worry about what could become of that.
Here's the full text:
I wonder, which part of "nor shall be compelled" did the honorable judge not understand?
The upshot of this is you have no rights to leave or reenter the country. Forget about it, if you leave, just plan on not coming back because you left the constitution behind.
Not that there was much of it left.
His name was Robert Paulsen.
Seriously people, read the court's opinion. Nowhere does the court say it finds he has waived his Fifth Amendment rights because of his initial cooperation. Instead, the rationale is that because the government is already aware of what is on the hard drive (the border agent saw suspicious file names and then apparently saw actual images of child pornography while reviewing the computer when it was turned on), forcing him to hand over the documents is not a self-incriminating act.
Further, because they are documents already existed, they are not "testimonial" in themselves. The Fifth Amendment concern is with forcing the person to hand over the documents, because doing so may in effect be self-incrimination because the person is being forced to admit either that they have the documents or that the documents are real and exist. Neither of these is an issue, because the government already knows the documents exist and are real, and the defendant admitted to having them on his computer.
So, to sum it all up, the conclusion is not that the defendant has waived his Fifth Amendment rights, but rather, that forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.
What?
Did he cooperate with the border agents before or after he was informed of his Miranda rights? As a general rule, you should always plead the 5th as soon as you are read your rights, whether you are innocent or not. IANAL, but I'm not sure if they can use your cooperation before they read you your rights against you in court.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
IANAL, but if I understand what I'm reading, here's how it works. (Lawyers, please correct me where I'm wrong):
The 5th amendment protects you from making testimonial statements that would incriminate you. What is testimony, then? It's basically saying something that the prosecutors don't know, or something that isn't self-evidently true. (The police and prosecutors may THINK you robbed the bank, but they can't compel you to admit on the witness stand that you did so, because that would be self-incriminating testimony from you that would clinch the case.)
In this case, however, the prosecution is well aware that the defendant has the information they want: namely, the password to the encrypted drive. They know this because he typed it in previously, in front of ICE agents. Therefore, by providing them the unencrypted contents of the drive, he is not providing new "testimony" - that is, when the defendant reveals that he does indeed know the password, it's nothing new. The prosecution already knows he owns the computer and that he knows how to access the hidden drive. Thus, the 5th amendment can't be used by the defendant to save himself from having to give the contents of the drive to the authorities.
If I'm not mistaken, the authorities can compel a defendant to open a locked safe when they know that person knows where the key is (or what the combination is). I believe the same thing is happening here.
Now, what if hypothetically he had a TrueCrypt hidden container on the drive? And what if the authorities were pretty sure that such a container existed, but couldn't be sure? Could they compel him to testify whether or not there IS a hidden container in the drive? I don't believe so - that would probably tilt the balance into "testimony", which would be protected by the 5th amendment. Ditto in the case of a file called "MYSTUFF.DAT" that the authorities think is probably a TrueCrypt encrypted volume, but can't be sure about. They can't force the defendant to confirm that suspicion.
In this case, the defendant was sunk because of his prior, freely-given revelation that 1) there was an encrypted drive on his PC and 2) he knew how to access it. By giving that information up, he gave up the farm. It's too late to plead the 5th.
There should be a destruct password, if given at the password prompt, NUKES the contents of the drive!!!!
Police: What's your password?
You: Umm, let me think, oh! yes, "fr0b0zz"
[police enter password]
You: NO! Wait!!! NO!! That's the destruct password don't enter it!@!!
Too late.
Too bad, so sad.
sohp notes that "the order is not that he produce the key â" just that he provide an unencrypted copy."
Of course, that's putting the cart before the horse.
This probably won't fly in the SCOTUS. Even if it did, it would be quite impractical to enforce.
Take for example, a suspected drug dealer. He cooperates a bit with the police who want to search his house. They find no illegal substances. But they saw an empty baggie sitting in a drawer. They tell him to hand over the stash, because they know he has one. Without the stash, they have no case. He refuses. Eventually it gets to the point of the court telling him to "hand over the stash". Therein lies the problem. Without the stash, there can't be any charges. So he conveniently says again "I have nothing to show you." What will they do? Hurl insults at him? Even if there was some way they could get him in jail, the accused would be better off taking 6 months for contempt of court or obstruction of justice (really tenuous) than 99 years for having the stash.
This case is similar. The cops saw the images, then turned off the computer, which required a passcode for them to regain access. Now he's been ordered to produce an unencrypted copy of the data for them to use against him (not his password). I fail to see how those two are separate. Unless he has an unencrypted copy of the hard drive somewhere, this is going nowhere fast. Why? "Gee, your honor. With all of the stress of being in court and all, I seem to have forgotten the password to that hard drive. In fact, I don't remember what's on it, either."
They need the porn for to convince the jury beyond the shadow of a doubt. The cops might be able to testify they saw something, but for all a jury knows, they could be lying, or they may not be remembering things clearly. What will likely happen is that the SCOTUS will say "You can't retract self-incriminating evidence you provided on your own, but you can refrain from providing any more at any time. If the police are careless with evidence, you don't have to give them more of it."
Disclaimer: The opinions and actions of the US Gov't are in no way representative of those held by this author or its ci
is lawyer speak for: "Shut the fuck up!"
Excuse me, but please get off my Pennisetum Clandestinum, eh!
How do we blame George W. Bush for this when Barack Obama is the president now?
NOTE: Only works if you're innocent
Tell them that you can prove your innocence and will but that you must be fairly compensated for the defamation of this libelous slander and defamation of your personal integrity, plus the intrusion into your private life that will need to be done to prove these accusations false.
Tell them that if they are so convinced that he is hiding child pornography (or whatever it is) that they must prove that there is evidence showing what is there to be answered. This is to ensure that they do not go on a fishing expedition or look in places they have no expectation of finding the materials they believe to exist.
If they cannot do this, then there is not enough proof to justify the unconstitutional demands.
Add that there must be financial compensation. This compensation should come from the departments that maintain that there is something to find.
If they are so certain they will find something incriminating then they are risking NOTHING and so compensation of millions is no risk whatsoever.
However, if they do not find what they are looking for, this compensation MUST be paid.
This will ensure that court time (which costs millions) is not wasted like has been done here on poor intelligence.
Again, if the court and justice system is so convinced that there is a need to rummage through EVERYTHING, there is no loss to be considered and should be easily agreed to.
And if it turns out that someone is telling porkies a lot and making false accusation, this will be astoundingly easy to spot since even in a government department losses of tens of millions will not be possible to hide.
Just use a notebook with Linux installed, and have it book to the CLI.
I bet not one agent would know how to use it or even know how to start X.
Not unless it is one of those 80's-90's luggage-sized "laptops".
I thought all rights are in effect at all times. That's what makes them a right, right?
This is not a "copright", this is a legal, personal right between you and the government. Allowing any right to be waived, or implied o be waived is a slippery slope.
Slashdot's rate-of-post filter: Preventing you from posting too many great ideas at once.
INAL but it seems clear. Let's try an analogy:
If a man says "I was with the victim in central park", and then clams up citing the fifth; he can't say that what he's already told them is inadmissible under the amendment (he waived it when he volunteered), but that doesn't mean that he can be compelled to confess to the crime either.
His existing assistance is legal, because he cooperated. To say that he cannot invoke his right at will seems silly.
I read the case. At the border, on request of the Immigration and Customs Enforcement people, the guy decrypted his (he admitted possession) laptop's Z drive and let the border agent have a look. The border agent saw probable cause to believe that the guy had illegal images stored on his computer.
Now the guy is claiming that he can't be made to provide (once again) an unencrypted copy of the Z drive because the act of producing the unencrypted Z drive would tend to incriminate him.
The "act of production" is the key thing. The Fifth Amendment affords zero privacy protection for hard drives (look to the Fourth Amendment for that). If the act of production would tend to incriminate you, then the Fifth Amendment may be asserted.
The government won with the "cat is already out of the bag" attack. A higher court had already accepted that defense in a similar (non-computer) case. The District Court followed the reasoning in that case.
This is a grand jury proceeding--not a criminal case. The government has submitted that it will not use the defendant's act of production against him when they prosecute him.
I expect that this case will be finally resolved in the Court of Appeals.
He hung himself when he decrypted the disk and showed the computer to the border agent.
When will someone create an encryption utility based on Chafing and Winnowing? This allows several files, each with its own key, and some random data, to be combined in a single file. On one can determine how many files are in there so, after you extract one or two files, you can deny that there are any other files in it. And no one can prove there are more files in it (since there is a unknown amount of random data also included in the package). Plausible deniability.
I forgot the password, and my dog ate the scrap of paper it was written on. *que the screams, as I am dragged off to be water boarded complete with electrified nipple clamps*
I will not be pushed, filed, stamped, indexed, briefed, debriefed or numbered. My life is my own.
Since no one has the key or passphrase, they can only be relying on the word of a few border agents, who could quite conceivably be lying.
In effect, this has just given the green light for police to force anyone to reveal the plaintext of whatever they like by simply claiming that they have seen that it contains CP or terrorism-related files. Not a good precedent to set.
One thing this country has no shortage of is judges who don't know the law and can't apply it to cases.
When asked at the border what that huge suspicious file is on your laptop, do you answer..."
"I don't know, its a encryption contest. First person to decrypt the file gets $10,000."
"Its a raw rendered animation. I am preparing my portfolio to send to Pixar."
"Its a wadfile I'm assembling for an open source game file."
"It's a dump of an old VAX proprietary database that my boss wants me to port to SQL."
"Its a gig of encrypted kiddie pr0n."
Think carefully now...
HA! I just wasted some of your bandwidth with a frivolous sig!
...so forget trying to use it for defense on this. The true defense is to not make it obvious that there're encrypted files on one's disk. Seriously, the assumption that one can just take a bunch of files, put them into a painfully obvious encrypted container file, and expect it to pass a basic inspection is just stupid. If one takes the time to actually hide their secret junk in an inconspicuous location, mixed amongst other similar-looking files, then maybe you can actually pass as innocent. The problem is that the average user has too much faith in a password alone, and doesn't think to even remove any evidence that could cause them to suspect something's there in the first place.
Yeah, the guy was stupid and showed the cops one file that was probably illegal, and I can see that the judge could order him to produce that file again. But if there's one, there's probably a lot more, and while the cops have enough evidence to get a search warrant for the rest, forcing the guy to turn those files over means he'd be incriminating himself on possession of files 2...N, and therefore he'd probably be subject to more prison time than just file 1.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
If this is the keystone to his conviction, he could choose to tell the court to go fuck itself and just take the contempt of court charge that would inevitably result, which should be substantially less than whatever you get for smuggling encrypted child pornography across the border.
HA! I just wasted some of your bandwidth with a frivolous sig!
(Good thing I'm not American)
Moot point, we send someone to come get you. When has outmoded concepts like, 'borders' and 'sovereignty' stopped us before...
HA! I just wasted some of your bandwidth with a frivolous sig!
This isn't about porn or criminal information -- any sensitive information shouldn't be kept on your laptop, especially if you're going over a border. There are so many simple solutions -- keeping it somewhere "in the cloud" and fetching it on the other side, or putting it on a chip and mailing it to yourself. You don't even have to resort to exotic technical solutions like hidden partitions or steganography. There are so many simple solutions that don't involve having the information actually on your laptop... It's astonishing that this even comes up.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
In this case, the defendant was sunk because of his prior, freely-given revelation that 1) there was an encrypted drive on his PC and 2) he knew how to access it. By giving that information up, he gave up the farm. It's too late to plead the 5th.
Need to add a third reason, i.e. He already showed the contents to the police.
Now, what if hypothetically he had a TrueCrypt hidden container on the drive? And what if the authorities were pretty sure that such a container existed, but couldn't be sure? Could they compel him to testify whether or not there IS a hidden container in the drive? I don't believe so - that would probably tilt the balance into "testimony", which would be protected by the 5th amendment. Ditto in the case of a file called "MYSTUFF.DAT" that the authorities think is probably a TrueCrypt encrypted volume, but can't be sure about. They can't force the defendant to confirm that suspicion.
IANAL either, but probably not. If the police saw a safe in your house, they couldn't just tell you to open it. That you have a safe or encrypted drive, that alone is not proof you are hiding anything illegal. That you are suspected of having something illegal, and have a safe/encrypted drive does not mean it is in it. The 5th should protect a person in that case.
"Yes, there is a safe, no, I won't open it."
Cop:"Your Honor, I want a subpoena to get into that safe, even though I have no idea what is inside it."
Judge:"No."
Where it would get interesting would be if the defendant claims that he doesn't know the password. ("My friend created and opened the Z: drive on my laptop, but I don't know how to access it once it's closed again"). Or whether he claims he forgot it.
That would be interesting, but probably no where near the noise of this case. They would just compel the friend to open the file.
I'm guessing part of the difficulty courts are having here is that in the non-crypto examples it never really becomes a legal issue where precedent is set. If you refuse to open the safe for them, they don't spend a bunch of effort trying to get the courts to force you to open it: they just break it open. I'm not sure the courts have been confronted before with evidence stored in what's essentially an unbreakable safe. (But I could be wrong.)
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Truecrypt provides something along these lines. It doesn't work exactly as you describe, but you can basically have 2 sets of encryption keys. One that decrypts your benign filesystem, the other that decrypts your hidden filesystem.
My hidden filesystem is benign, you insensitive clod!
Explain how I'm going to retrieve my 20+ GB offline database from 'the cloud' when visiting the clients in Elbonia.
Sometimes you need a hidden partition. I have one, it has the source code to my current projects and a backup of the DB from the current projects. If it's stolen, it has a 25+ key password that no one's going to break anytime soon. I also have an inside partition with copies of memo's and emails that look important, just in case. (I'm not turning over the keys to the company to some TSA guard)
Overall, I'm much more concerned with the average thief who wants to resell my laptop.
And people finally see some sort of threat to themselves, and instead of jumping down the guy's throat after he ACTUALLY SHOWED CHILD PORNOGRAPHY VIDEOS to a border agent, they're all trying to pinpoint exactly how his rights may have been violated and look for a way out of this mess.
Still, he was stupid, why the fuck would you show customs a video of (apparently) a preteen getting naked and screwing around in the first place?! This is an interesting case from a legal standpoint, but I think he's already fucked himself, and broke the law, so yeah, jail time.
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It is entirely possible to encrypt data in such a way that it appears to be a benign file. JPEG as a format lends itself particularly well to this.
I could craft a file that contains jpeg data ending with an EOI (End-Of-Image) marker, after the EOI marker is my encrypted data, looks like garbage without the decryption key. The file can then be opened (though not edited) in any image preview application and it will look like the benign jpeg.
A forensic computer scientist who knows something about JPEG format structure would notice the garbage data after the EOI marker if they opened the file in a hex editor, but what reason would they have to do so? The file looks *exactly* like any other happy snap, with the exception that its file size is larger than is necessary. A cursory glance of some jpegs i already have in a photo album shows that they vary in size between 550Kb and 750Kb - from the same camera. I could store a lot of sensitive info in 200Kb without ever raising any suspicion.
Now imagine your average security guard. If your photo has 1Gb of encrypted data stored on the end, it will still look the same in the image preview app. Turn off the status bar that shows the size of the selected file and you'll probably never raise an eyebrow.
Censorship is the opposite of education. If neo-darwinism were defensible, people would not need to try and censor ID.
... that way you aren't waiving your constitutional rights.
now we need to go OSS in diesel cars
One password for your secret stuff.
One password for pictures of puppies.
I believe TrueCrypt supports something like this: http://www.truecrypt.org/docs/hidden-volume.php
if a cop doesn't read me my rights, questions me, I admit to killing you, isn't that NOT admissible in court?
on the one hand, it makes perfect sense. you can't just take some little child and bully him into confessing when he doesn't even know he has a right to a lawyer.
but on the other hand, seriously, if a cop says, "hey, what are you up to tonight?" and you say "well, i'm sorta burnt out from killing this hooker last night" then he arrests me. then I clam up and that's the last I say about it. you're telling me he can't use that in court?
if a lawyer can help me with this, i'd appreciate it. then, can you relate it to non-verbal? does a lawyer have to mirandize me before saying "can i search your backpack?" if i cooperate without being mirandized, how is that different from Miranda getting bullied "you have to tell us, right now, what happened last night. you have to show me, right now, what's in the backpack. you do not have the right to refuse or the right to professional defense.
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If the only thing against him at this point is some border guard saying he saw child porn on the guy's laptop, the guy has not given up his fifth amendment rights. For one thing, one person's word against another's is rarely given much weight in court if that's all there is.
In short, the guard claiming he saw child porn on the guy's hard drive is much, much different than the court ordering the guy to provide evidence against himself.
This is different from, say, a police interrogation, where what you're saying and doing is recorded and usually witnessed by several people. In such a scenario, assuming you'd been Mirandized, then if you confess to something, it's game over, and you can't go to court and claim fifth amendment protection against information you voluntarily gave away in the presence of corroborating witnesses and recording equipment.
But in this situation, it seems like all the court has is some guard's say-so that there was child porn, at which point the laptop was seized, but now nobody can confirm whether or not the guard saw what he claims to have seen. As far as I can see, there's no legal reason to insist that the guy has to give up information based on that.
Let's put it another way. Suppose you get pulled over on a routine traffic stop. For no reason, the cop arrests you, and claims you told him you killed a guy. Now, do you think your fifth amendment rights have been forfeit because a single individual says you already admitted to the crime? Or do you think maybe there should be a little more to it than that?
mirrorshades radio -- darkwave, industrial, futurepop, ebm.
... just mark a few million random blocks in a filesystem as bad blocks (Linux users, see option -l on mke2fs). Encrypt that list elsewhere (so it is usable as a reference in case there are any truly bad blocks). Write a FUSE filesystem that maps these blocks into a single big file, with the encryption done here. Then map that file to a loopback device. You can format the loopback device and mount it like a filesystem. But it has no corresponding drive, partition, or even a file that can be seen. When this partition is mounted, it has files and works. Writing new files won't overwrite the blocks marked as bad.
now we need to go OSS in diesel cars
Comment removed based on user account deletion
First of all, I am not a lawyer. I do find the law interesting, though, and flatter myself of having some understanding of it.
The only question in my mind about this is, was his initial cooperation (which produced evidence of his crime) done under coercion? I've been in these security lines before -- there is a strong pressure to just go along and get along and let a lot of crap slide. If he truly believed that his only choices were between "show the border agents what's on my laptop" or "the border agents confiscate the laptop (which may contain important personal documents unrelated to any crime) and search it anyway" then I think there would be a strong case that the initial evidence should be inadmissible because the initial "cooperation" was out of some fear of personal harm. By analogy, cops can't convince you to let them into your apartment because otherwise they'll have you evicted and just search it anyway.
Of course, this is complicated by the probability that they have pretty wide discretionary powers when it comes to allowing things into the country or not. You couldn't complain, "I only showed them the cocaine because I thought they were going to confiscate it anyway".
Local: 2008 General Election - Allegheny County, PA - Straight Party Column, 163,376 Dem (65.09%), Libertarian 536 (.21%). State: Per the AFL/CIO page, 620,000 union members in PA, at least. By comparions, 200,000 people across the country are registered Libertarians? National: See above.
I don't know if anyone mentioned this yet, but courts have ruled ports and border connections as areas where the government may freely detain people and potentially search them, Bill of Rights be damned. In fact, there's a 100-mile zone all around the country's edges where border agents may have latitude (at least, according to the ACLU):
http://www.aclu.org/privacy/37293res20081022.html
Such policies, which began as a way to stem the flow of illegal immigrants, has expanded to precursors for porn and drug busts. I don't think the judge said "hand over the unencrypted files because you had no 4th amendment protections to begin with", but it's damned close.
And yes, it would be 4th amendment, because he allowed law enforcement to search him. Taking the 5th after the fact is silly.
"We are Microsoft. You shall be assimilated. Competition is futile."
Frank Zappa was WAY ahead of you on this one. Enjoy!
Mal-2
How is the Riemann zeta function like Trump rallies? Both have an endless number of trivial zeros.
"Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive."
Quickly hides my ipod touch....
So they only check laptops or what? What about ipods, thumbdrives, cellphones, nds? Man I would carry an autorun virus on a usb stick if they're checking those.
*tap tap tap tap tap*... What the...
*taptaptap tap tap tap*... damn...
*tap tap tap taptaptaptap*.... crap...
uh judge, I have searched my memory and I honestly have no recollection of the pass phrase.
"I don't know" reply should satisfy any one.
Remember the dreaded Trusted Platform Module (TPM)? Evil enforcer of unbreakable DRM and other nastiness? This is one of the rare cases where TPM-managed encryption works to good effect. If the key is hidden inside the TPM (and if you've avoided making any TPM backups and such), just give the wrong TPM PIN several times in a row and the TPM will become unrecoverable. After all, you're probably pretty nervous under all this coercion, it's natural to make mistakes. The adversary can clone your disk drive without difficulty, but he can't easily clone a hardware-secured TPM--and once it's zeroized its internal keys, they're gone, baby, gone.
That's assuming, of course, that you believe the TPM is secure and doesn't have back doors. It might, but letting THAT secret out for a boring child pr0n case seems unlikely. And the hardware security of some TPMs does look pretty darn good. I mean, after around 20 years of getting hacked by cable-TV pirates, the semiconductor companies have learned a thing or two.
Simple. Use a truecrypt AES hidden volume.
when asked to give up the goods, give up the outer shell.
They're using their grammar skills there.
A personal favorite of mine, that I made up when I was about 10: cuntsludge. It's highly offensive, sounds aggressive, and is just plain gross.
Go ahead, try it out.
Beware the previous.
If you had several encrypted volumes on your machine (via something like Truecrypt), and simply left one or two of of them without any content, it would be next to impossible to prove that any of them contained anything.
ask for a lawyer
The trick is that since the terrorist will say no, they can be deported for lying on an immigration form, which has much less of a legal burden than proving that they actually are terrorists.
Errr...but if you cannot prove that they are terrorists then how can you prove that they lied on the form? Besides if they are terrorists then the LAST thing you want to do is just deport them.
Is "I forgot" or "I never knew the password in the first place" considered a valid defense?
Probably not but they could be valid passwords if you really want to mess with border guards' minds (which I would probably recommend against!).
First off let me say I have the utmost respect for Law Enforcement Officers (LEOs) - but in just talking to a LEO about "an event" circumstantial or otherwise basically erodes any rights you have (or thought you had).
As Noted: Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents.
There are a couple of great vids on this topic on youtube. Yes if had or discovered info on a nasty crime I would go to the police. But if you marginally involved or entangled in a dispute or some legal F-up --- talking to the police will not help you. Just read the Miranda and that says it all.
Its not the years, its the mileage
http://www.youtube.com/watch?v=6wXkI4t7nuc
Also, the judge is full of shit. You have the right to shut up at any time.
Hmmm...Pray, tell me how the hell do my "float" my 22GB+ collection of errr exotic videos into the "clould" and getting it back?
I have TrueCrypt, but i don't think that's going to solve the problem anyway.
Are you suggesting i burn them into DVDs and mail them to myself?
"Doing what i can, with what i have." ~ Burt Gummer
Sensitive?? Crap.
All i have on my laptop is pr0n. Period.
Why would i want sensitive information on my Apple iBook, when i can store it in my Windows XP Desktop??
Ohhh... now i see what you mean...
"Doing what i can, with what i have." ~ Burt Gummer
I've a number of containers which I've forgotten the keys for.
:).
But I keep them around just in case I figure out what the keys are
"forget" what the password is.
..........FULL STOP.
Unfortunately, at least when it comes to religion, it IS morally right to crusade and try to convert people.
Catholics say their's is the only true God, the others are fake, join with us ...
Muslims say their's is the only true God, the others are fake, join with us ...
Hindus say their's is the only true God(s) ... they have like 5000 but what the hell, the others are fake, join with us ...
The Sith say they are the true Gods, Obi Wan, join with us ... (in Christopher Lee's voice)
Awww, I got nothing ... just ignore this ;-)
However, on the other hand don't for a minute believe that society needs to bend over for you as well
Freudian Slip ?
That is consistent with what I've always heard, all the way back to the early days of my studying the law via TV shows ;^)
The accussed can invoke their 5th ammendment rights, but it needs to be consistent - the accused can't pick and choose what they want to answer. In countless TV dramas I've seen criminals repeatedly take the fifth to even the most mundane of questions, and once they answer one question, the prosecutor can compel them to answer other questions, as they have effectively waived their right to 5th ammendment protection by answering a question.
Now, I know, TV is not reality - yet.
Ken
As a believer in Christ (AKA evangelical, born-again, bible thumper, etc), and student of the bible for several years, the OP DOES NOT represent the Christian viewpoint. Without rambling on about scripture, I'll simply present the biblical truth: that God does NOT EVER hate the sinner; it's the sin He hates. Every apostle was a sinner (Paul used to murder/beat/prosecute Christians before he was converted), Moses killed an Egyptian (murder, not self defense), David had a man killed because he (David) lusted after the man's wife.
So whoever the OP is, you will answer to God for misrepresenting Him. That's the exact offense that kept Moses from getting into the promised land.
One last item, no matter what sins or atrocities ANYONE has commited, God is ALWAYS faithful to forgive, if we repent.
I always feel guilty posting this stuff in a technical forum, but the OP had to be addressed.
What ?? so if i cooperate with law enforcement agents i have no legal rights ??? i supposed if i don't then i have no rights nither... this is a very bad persistent to set !
the man had waived his right against self-incrimination when he initially cooperated with border agents
WHAT THE FUCK.
So to retain my constitutional rights, I have to be completely uncooperative when the government's Nazi-esque agents try to bully me? Ok, but I don't think it will go well.
It bears repeating: WHAT THE FUCK!
Can't you just see that case... "defendant was uncooperative with border agents", "Uhm, your 'honor', I was merely trying to retain my constitutional rights, namely the fifth amendment which apparently cooperating with agents is indication of waiving..."
Muslims say their's is the only true God, the others are fake, join with us ...
Muslims say their's is the only true God, the others are fake, join with us ... or we'll kill you...
There, fixed that for you.
What possible reason is there for border agents to check electronic files on a laptop? Checking for physical items stored in a laptop is one thing (and a stretch at that), but how does this kind of thing go on and not even one comment about why... Have we all really just given up on this?
Unfortunately to get them on this technicality you would have to prove that they planned to import drugs or were part of a terrorist organization at the moment they filled out the form.
Of course this would imply a working justice system... But if the system doesn't care about the law anyway, why bother with the questions in the first place?
I guess I've been asleep at the wheel when this started to happen. My apoligies in advance for the stupid question: When did we start caring about files on a laptop? Do files have a potential of exploding? I thought the focus on laptops were to prevent issues in-flight? When did we start allowing them to do these searches AFTER an international flight? I think there was a line that was crossed and no one pushed back.
I can't find a link to support it, but my recollection is that the "cooperation" was initially allowing the Border Patrol agents to access the encrypted data.
I can't think of anything illegal on my computing devices, but I have pretty much decided to wipe my cell phone and/or computer anytime I cross a national border.
FWIW, reading the text of the complaint, I really dislike the fact that this is the guy who's the poster boy for civil rights. It smells even worse than defending freedom of speech for the KKK and the Nazis.
"Who controls the past controls the future. Who controls the present controls the past." -- George Orwell
for all the wanna be Johnnie Cochrans out there think for a moment ........
THIS IS KIDDY PORN !!!! .
Do we really want to let someone with this vile stuff get away ?
I know its sposed to be Inocent until proven guilty but the system now treats defendants as guilty until proven innocent.
before I get jumped on the statistics are that approx. 70% of people who are charged will be found guilty. I know about the court processes and people have a chance to be judged by there peers buts thats theory does it really happen in practice?
So some Judge has found a loop hole good on him.
If he produces some files that he _says_ are the unencrypted counterparts but doesn't have to give up the key how would anyone know if they really are the same files?
I think the judge was interpreting the password like a key to a physical door. The defendant agreed to a police search and is now required to allow them to complete that search, including the "locked back room" to use a physical analogy.
Here is the text of the fourth amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Notice that "papers" are mentioned and therefore even the 200+ year old constitution appreciated privacy of information.
Because the defendant gave permission for the search, his fourth amendment argument is weak, but waiving his rights in one context, his fourth amendment rights, does not waive his fifth amendment rights. Also weakening a fourth amendment argument is that if this was a border search, he had no fourth amendment right against search.
But again, that doesn't mean anything in the context of the fifth amendment however. The defendant should just refuse to give the password, invoke his fifth amendment right and then fight the contempt charge where he has a great case IMHO.
I'd refuse to give up the password. Contempt charges are far less damaging than kiddie porn ones.
"...whenever any Form of Government becomes destructive...it is the Right of the People to alter or to abolish it..."
Yet another weasel approach...what if you make your password something incriminating?
If they really wanted the contents of the encrypted drive/partition, they could grant immunity for the contents of the password - in which case, "iCheatedOnMy2002Taxes" might not be such a big deal to them.
But what if it's "iKilledMyThreeExWives" ?
This will certainly provide a boost to deniable encryption, which so far has been a bit of a bastard child (mostly due to the really hard math involved and the sheer difficulty of implementing it - such as how to not overwrite data that you shouldn't even know to be there?).
Assorted stuff I do sometimes: Lemuria.org
Excuse me I think I may have killed someone I now wish to invoke the 5th. That doesn't work - Seems almost the same as whats going on here - Oh here's my computer yes and this is my encrypted partition where I store some files - these are some of the file names - yes they look like pictures - Will I let you look at them - No They are encrypted - Will I provide you the Key - No I take the 5th. Its evident that he cooperated until he felt that he was in danger of being discovered of possessing child pornography. Once he was in danger he clammed up. Seems to me that he had already gone through the process of self incrimination by giving them the laptop and letting them poke at it in the first place. IANAL but I would have to agree with the Judges decision - as much as I dislike it.
"i lost my dignity on a slippery wiener"
"The basic role of the police is to enforce the law"
Really? There are zillions of laws nowadays.
If the ones they keep enforcing do not result in a reduction of crime and disorder, the Public won't be happy with them right?
Why have the Police around then, if they do not reduce crime and disorder but just enforce laws? IMO they would be Parasites.
Everyone has limited resources. So it's a matter of priorities.
Maybe if the police started figuring out that their real role is to reduce crime and disorder, then they would have better enforcement priorities, and the Public might start respecting them more.
Yes there are lots of stupid laws (and that's the fault of the legislators). BUT in practice the cops, prosecutors and courts still get to pick and choose which to enforce.
Don't believe me? OK, how many people have got life sentences for committing adultery in Michigan?
Some say that's absurd "just because", but it is the Law. In some countries the penalty for adultery is death, so why is life imprisonment absurd?
Adultery not serious? Go take a poll of those whose spouses have been unfaithful and ask them to compare it with other possible serious crimes committed to them (armed robbery, assault with a deadly weapon, etc). If 90% think it's not that serious then fine. But if a lot think it as serious, then perhaps adultery should be still considered a very serious offense. Then the wronged party would feel the punishment is fair, and law and order is maintained.
After all, if I stole your house, and you took me to court and I was guilty, but the Court just gave me a slap on the wrist (and I still got to keep your house, Nyah!), you would be sorely tempted to go vigilante on me.
The argument here is that since the border patrol saw the files, the entire government has all access to it. This is a ridiculous argument. If a cop says he saw me doing something, suddenly my 5th amendment rights are waved, because the executive branch's witness revokes my rights and it becomes a "foregone conclusion"? Bullshit. If I wasn't in court, then blind Lady Justice didn't see anything but what the executive branch can provide as evidence and witness. If the accused cannot reasonably provide counter evidence or counter witness, then he stands condemned, but it goes against the very right granted in the 5th amendment to compel him to provide the witnesses against him with proof of their witness.
I am the richest astronaut ever to win the superbowl.
I'm sorry, I didn't RTFA. So sorry if I missed the obvious, but I want to fit in.
I know this is an unpopular view, and that everyone has a right to privacy.
Really though? You have to be a complete idiot to go through all this shit unless you're doing something that will put you in jail.
I realize that if we have no privacy its bad for many reasons, and I'm not arguing that.
What I'm saying however is that at this point, if protecting the data really is all just about 'standing up for your rights', then you my friend are a fucking moron.
If its truely personal, private information then you simply tell the judge that you'll release it only to him, and that he can decided if its important or not. Believe it or not, this is an option. When someone is in court, hiding information, its because they are guilty. There are ways to deal with these sorts of situations without letting the entire world know what your private data is, but you will have to let SOMEONE know who is unbiased, and thats what the judges job is.
This idea that you are entitled to do whatever you want and can hide behind the constitution is what is causing us to lose our rights. You have thousands of lawyers that only make money by having you tied up in the legal system. So lawyer is fighting 'for you' and another 'against you', but in reality, both of them are fighting 'for themselves and the largest payout'. So while you're listening to your lawyer say 'dont give them anything! We can fight this', you really need to ask yourself. Why am I fighting this?
Other than pure principals, I've never heard any reason why you would fight this sort of thing that was even remotely valid. It always comes down to, 'I did something illegal and I don't want to get in trouble for it'.
I know the hate responses to this post are going to flow, but REALLY, he the guy isn't guilty of something, what on the planet could be SO bad or SO private that he can't ask for a private screening of the data for the judge to consider its relevance?
If you're defending him on principal, you too are an idiot, and making the problem worse. By fighting retarded fights like this, all you do is make more people say 'well, if he's got nothing to hide, why the hell is he being so insanely protective of the nothing to hide part'.
This went way past principal a year ago, and now we're into the stage where its obvious he's afraid that once the data is out he's going to be put away. If I were in his shoes I would probably do the same thing. Child porn doesn't typically go over well with even hard criminals, and his jail time is likely to be fairly rough.
Sorry if my opinion isn't the norm here, but this isn't your normal case involving personal privacy, this has bypassed normal and when straight to stupid. What makes it even more retarded is that he simply could have sent the file electronically, not carried it over the border on his person, and no one would have been the wiser. Trying to pretend this is about his rights is dumb, this is a man just looking for any excuse he can to avoid being punished.
Yes, we're supposed to be innocent until proven guilty. That man has proven himself guilty, not by solid evidence which they are still trying to get at, but by his very actions. If he was innocent, turning the data over and then using the law in his favor by suing the government would have been a better plan of action.
Cops often use your actions during/after they've questioned you to get an idea about your guilt. Its not proof, but its a learned skill, almost an instinct. Its not always right, but theres no doubt that its an ability that some cops have and they are very accurate with. I'm not one of those people, but ... I bet you any of them would look at this case and say 'uhm, yea, hes about as guilty acting as I've ever seen'. Every action this guy has taken leads them in that direction, he hasn't done ANYTHING to change those views.
My solution, however irrational, would s
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
Well, if you want to get technical, Jews, Christians and Muslims all worship the same God, they're just in disagreement as to the proper ways to do so.
It is pitch black. You are likely to be eaten by a grue.
It's a troll, and a pretty transparent one at that. I seriously doubt that the poster actually believes what they said...although it's amusing seeing everyone taking it so seriously.
It is pitch black. You are likely to be eaten by a grue.