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US District Ct. Says Defendant Must Provide Decrypted Data

Posted by timothy on from the narrow-ruling dept.

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."

13 of 767 comments (clear)

  1. Re:Initial cooperation by cfulmer · · Score: 4, Informative

    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.

  2. The Ammendment by mangu · · Score: 5, Informative

    I don't know anything about the 5th Amendment

    Here's the full text:

    Amendment V
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    I wonder, which part of "nor shall be compelled" did the honorable judge not understand?

    1. Re:The Ammendment by muridae · · Score: 5, Informative

      The guy gave the police his laptop, and cooperated with them. If I open a diary, during a border crossing or car search or what ever, and the cop sees evidence that I killed someone, they can get a subpoena for the book and I can't invoke the 5th. I already showed it to them. If this guy had kept his mouth shut to start with, not shown the police any part of the encrypted drive, he would be fine.

      The 5th is not an on-and-off right. You can't get on the stand at your own trial to testify in your own defense, and then start invoking the 5th when the prosecutor asks questions you don't like. The same here, he gave them the computer, they saw the data. He can't say, after that, "Sorry, I'll take the 5th, you can't see the computer again."

    2. Re:The Ammendment by muridae · · Score: 5, Informative

      I'm bored, so I looked it up. Raffel v. United States, 271 U.S. 494 (1926). Further upheld in Johnson v. United States and later Stefena BROWN, v. UNITED STATES. The witnesses can invoke the 5th on any question they feel may incriminate them. The defendant can not. The defense's choice is 'Take the stand or not." Once they take the stand, the questions just have to be valid and not cause a violation " . . . of policy in the law of evidence which requires their exclusion."

      Either way, this guy waived his 5th, with regard to this evidence, when he showed the police the incriminating evidence.

      IANAL, this is not legal advice. Raffel v US could have been overturned for all I know. I can't find anything suggesting that just yet.

  3. Re:5th Amendment by conlaw · · Score: 4, Informative
    It wasn't just that he admitted that it was his laptop; he actually opened the Z drive for the border agent who then saw evidence of child pornography. This is like you standing at your door and saying, "Of course you can come in and search my house, officer." Once you've done that, you can't really take the 5th with regard to the illegal items they find in that search.

    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.

  4. RTFO by Peyna · · Score: 4, Informative

    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.

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    What?
  5. Re:5th Amendment by canajin56 · · Score: 4, Informative

    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.

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    ASCII stupid question, get a stupid ANSI
  6. Re:5th Amendment by geniusj · · Score: 5, Informative

    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.

  7. Re:5th Amendment by Galphanore · · Score: 5, Informative

    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.

  8. Re:5th Amendment by jonwil · · Score: 5, Informative

    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)

  9. Re:5th Amendment by SJ2000 · · Score: 5, Informative

    http://www.truecrypt.org/docs/?s=plausible-deniability

  10. Re:5th Amendment by LurkerXXX · · Score: 4, Informative

    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

  11. Everyone, please watch this by rolfwind · · Score: 4, Informative

    http://www.youtube.com/watch?v=6wXkI4t7nuc

    Also, the judge is full of shit. You have the right to shut up at any time.