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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."
No. If you show the border agents the encrypted kiddie porn on the hard drive, you cannot later claim that being forced to give them a copy of that same kiddie porn would be a violation of your 5th amendment right.
No, showing the cops evidence and then saying "gee, I didn't mean to show you that, you can't use that evidence" is forbidden, for pretty obvious reasons.
Here's the full text:
I wonder, which part of "nor shall be compelled" did the honorable judge not understand?
And before someone raises the issue, the decision should come down differently if the illegal goods were found in your roommates room and you had no way of knowing that he possessed these items.
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?
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.
You can take the 5th all you want. You can't take it on what you've already admitted to. He said its his laptop, and he said Z: is an encrypted partition where he stores the images. The image files names from recent documents looked like child porn. That got them a warrant. He refused to cooperate with the warrant. The judge said you can't take the 5th on whether those pictures are there, since you admitted it. Since they are there, you must cooperate with the warrant and let us see them. You don't have to testify as to the password, but you DO have to use it to show us the files.
ASCII stupid question, get a stupid ANSI
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.
Watch this : http://video.google.com/videoplay?docid=-4097602514885833865 You should never, ever, tell them anything you can avoid telling them. It can do you absolutely no good and even completely innocent things can be used against you. Sad, but it's what we've come to.
Actually, I have been arrested for being that obnoxious at the airport...
IANAL, but can't they technically keep you in detention indefinitely on an obstruction charge (i.e. you get to sit in jail until you relent, however long that takes) since it effectively stalls or postpones an open case?
Doesn't work like that usually, random bits are thrown in precisely to help prevent cryptanalysis IIRC (at least thats what I remember from reading Bruce Schiner and his cryptography books)
Seriously, would they arrest me for downloading child porn while I'm in, say, Vietnam? If I'm on a US military base, HELL YES. If I'm on vacation, and don't bring the material back into the country? Uh.
Yes. Yes, they would.
No what the case was:
Oh, I see you have a laptop. I want to see what you have on it.
Yeah, sure. Here I'll open up the Z: drive for you.
Hey, there's child porn there - you're under arrest.
*Later*
Open up your Z: drive again so that we can show the court your child porn.
No, I plead the fifth.
You already waved your rights - we're not asking you to do anything new or different, just to repeat what you did before. The fifth amendment doesn't apply.
http://www.truecrypt.org/docs/?s=plausible-deniability
I think the following videos from a lawyer/law-professor and an ex-cop are about 10000% more informative on the subject. Long, but worth it.
Part 1: http://www.youtube.com/watch?v=i8z7NC5sgik
Part 2: http://www.youtube.com/watch?v=08fZQWjDVKE
http://www.youtube.com/watch?v=6wXkI4t7nuc
Also, the judge is full of shit. You have the right to shut up at any time.