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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".
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)
"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?
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.
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?
"What's this?" the student asked.
"That's your child's pinky. Now what's your password?"
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
Yeah, because feds will kidnap and mutilate your children to get you to confess your password. Geez.
IAAL and this does not sound like a good idea.
In a forensic situation the first thing which would be done is an image of the system.
Sure imaging is not feasible for border patrol style searches, but if it is a CP or terrorism case, odds are the police would have taken a backup of your machine to start off with.
Giving them a self-destructive code would likely achieve nothing in the circumstance other then land you in further trouble (for obstructing a police investigation, lying, misleading the Court etc...) - even if the original charges and allegations are later proven to be false.
They can use the evidence you gave them, but they can't force you to give them more evidence which is what this is about. The argument is they're forcing him to decrypt more data under the belief it contains more illegal illicit material. If he gives them the key to decrypt he further incriminates himself.
He can't take back the evidence he accidentally gave him, but he should have the right to the 5th amendment and not further incriminate himself. They should make the case for what they have, or get a search warrant for the computer and attempt to decrypt the data without his help.
*DrugCheese rants*
"That's your child's pinky. Now what's your password?"
Not in the USA.
The best response would have been to throw it back. When the speaker asks what it is now, you tell him that its the end of his dick that the court cut off in response to your complaint.
The state of our legal system is that such an act would have tainted the evidence and damaged law enforcement's cas to the point that, child porn or not, that evidence would be worthless.
Have gnu, will travel.
I always wondered about the point of those things
There's actually a very good reason for those questions. Of course it's not to find terrorists by hoping that they answer yes to the question when crossing the border.
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. Just like Al Capone, if you can't catch them for their crime, get them on a technicality.
It's that simple.
I think where they have lost their way is, is when the police start doing bad stuff themselves, "just to solve the case" (even if it means convicting someone that might be innocent - at least of that particular crime - sure he might be guilty of something else, but you think rehab will work if you send a crook to prison for something you and him both know he didn't do? ).
All that "quota stuff" is counterproductive.
And there are too many cases where police have fabricated stuff, and when they have withheld evidence that can prove the suspect is innocent.
When people have nearly as low an opinion of the police as they do of organized crime syndicates, they really need to clean up their act. Once absolutely nobody talks to you, who is going to tip you off or give you clues?