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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."
Also if the defendant is not required to provide the encryption key/password, but an unencrypted copy, what's to keep them from providing a "sanitized" copy - how do you check if it's the same bunch of files if you can't see the encrypted data?
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
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.
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.
Courts have ruled before that you can't take the 5th to refuse to unlock a safe that you own. The reasoning is that the information you're providing - the combination to a safe, or in this case a decryption password - could never be incriminating in and of itself. It's the same reasoning that they used when they decided that the 5th doesn't give you the right to refuse to disclose your name. Now, if he had wanted to claim that the encrypted files weren't his and he didn't know how they got on his laptop, then providing the password COULD potentially be incriminating, because it would be evidence that the files were indeed his. But now that he has admitted to owning the files, that scenario is no longer relevant.
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.
so... good thing that you don't have that right in the first place?
"It is our choices, Harry, that show what we truly are, far more than our abilities." -- Prof. Dumbledore
What is needed is a destructive decryption program that produces files with innocent .zip or .rar file extensions that "decompress" into benign images or other files while destroying the original data. Unless the file is renamed and then opened with the appropriate program, no data is available.
All defaults would appear "wholesome",
The Thought Police request access to your flash drive. You hand it to them without comment, they open the files which display innocent images you personally selected beforehand. There is no steganography, the data is lost.
"This post is an artistic work of fiction and falsehood. Only a fool would take anything posted here as fact."
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.
You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.
obligatory quote
There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.
ZERO ZERO ONE ZERO ONE ZERO ONE ONE! Just brushing up for my next big invention: Ethernet over Voice (EoV)
forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.
The ruling is still troubling for the following reason: Suppose that the defendant had not cooperated with the agents in any way, only answering questions that are minimally necessary and required by law (i.e. his name). If the government agents then say that he has "document x" on "his laptop", but he says nothing and does not assist them in any way then could they later say that forcing him to produce "document x" which they claim is on the encrypted laptop (whether it is or not) abrogates the fifth amendment right to refuse to give up the key? If the answer to that is yes, then the 5th amendment is meaningless in these situations since the government agents could make whatever claims they like about your laptop and force the burden upon you to disprove them by giving up the keys and submitting to a search or else face the consequences.
A more apt comparison to the first amendment would be that by cooperating to shut-up at first, you've waived your right to speak up in the future.
This 5th amendment ruling seems wrong. Primarily because the so-called human rights defined in the BOR were not granted by the paper or the government; they are instead inalienable. They cannot be revoked because they are not granted. The BOR was the founder's attempt to remind future government that:
The feds have obviously chosen to ignore all of these.
These opinions guaranteed or your money back.
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.
But when they call the defendant to the stand, he *explicitly* gives up his 5th Amendment rights. And he doesn't give them up. He agrees to not follow them before taking the stand. They aren't throwing him in jail for failure to incriminate himself, but he swore to tell the whole truth, and is refusing to uphold that oath he gave, knowing it was overriding the 5th Amendment. The witnesses don't count because they are often not there voluntarily. They are compelled to testify, so they may decline any individual question. The defendant is not compelled to testify, but if he does must answer all questions. The reasoning behind that is sound, for someone to take the stand and give only small bits of the truth that help their case and excluding parts that wouldn't is a tactic that the courts don't allow.
Either way, this guy waived his 5th, with regard to this evidence, when he showed the police the incriminating evidence.
Did he show them incriminating evidence, or just make reference to it? And did they get the waiver in writing? The waiver in court is considered to be in writing because it is officially transcribed and witnessed by at least 3 parties. If they can't show he stated "I understand that by showing you this, I give up all rights" or whatever, then I can't see how he "gave them up." It sounds more like they were taken from him.
Learn to love Alaska
You joke, but I've filled a U.S. visitor visa application form recently, and, among other gems, it included a row of checkboxes such as:
Etc. Somehow, I don't think they will be at all amused if you reply "yes" to any of those, but I always wondered about the point of those things.
I had nothing to hide, let them search my vehicle. Didn't resist, was polite and as helpful as possible. When I asked why my licenses was suspended they said, they didn't know and that it was strange because their system usually gives a full reason. I was arrested and released on the spot due to procedure. One cop was "nice" enough to give me a ride to a local hotel as I was about 4 hours from home and had no vehicle.
I got back home and went to the DMV. There was a camera ticket taken of a car after I traded it in with a different person driving it. They said I could fight it and that I should get a lawyer. I would not have a license until after the full court battle went through. Instead I payed the $85 and went to an 8 hr class. Much less time and money.
When my court date came around I had a friend drive me to the town it happened in. I was looking to get my vehicle back and the stuff thrown out. The deal ended up I pay $80 fine for my license plate light being out. (the original reason I was pulled over) and $700 impound fee.
Again I could have fought it with a nice lengthy court battle, lawyer fees, impounded vehicle racking up charges, and there was still the chance that I would have won nothing. The law states "driving on a suspended license" and makes no exceptions for a mistakenly suspended license.
Sure I had almost $1000 for a screw up at the DMV, but I could have fought it, racked up 10x the cost in lawyer fees, had no car, have to get to a town 4 hours away, no way to get to work for 6+ months, and only a strong likelihood that I would have won.
In the end I'm sure that $1k was a boon to the small towns economy. I wouldn't doubt if the judge got a piece of it. The only time I had ever seen something so corrupt was when I had to get a friend out of a jail cell in Mexico. At least then I just payed the judge cash directly and he handed him over.
Paying taxes to buy civilization is like paying a hooker to buy love.
Something is badly broken when everyone is told not to talk to the police.
I think the priority should be to fix what's broken, rather than tell people not to talk to the police.
Sure it does reduce your risk a bit (and thus benefits you), but if everyone does that, the police become a lot less effective.
It's like the mass vaccination programs, if nearly everyone takes the vaccine, and only a few refuse, the few benefit (since vaccines do have side effects, and there's always a small risk of bad reactions). But if everyone refuses, it becomes a huge problem.
So if the problem is the police are crap. That should be fixed ASAP.
* The basic mission for which the police exist is to prevent crime and disorder.
* The ability of the police to perform their duties is dependent upon the public approval of police actions.
* Police must secure the willing co-operation of the public in voluntary observation of the law to be able to secure and maintain the respect of the public.
* The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
* Police seek and preserve public favour not by catering to public opinion, but by constantly demonstrating absolute impartial service to the law.
* Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.
* Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence.
* Police should always direct their action strictly towards their functions, and never appear to usurp the powers of the judiciary.
* The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.
See: http://en.wikipedia.org/wiki/Peelian_Principles
>>>All the more reason I'm happy I don't live in the U.S. anymore.
Yeah because living the UK where everything you do is watched by camera or internet surveillance, or Australia where your net is filtered to protect you from (oh no) naked bodies, or in Japan where the government *forces* you to lose weight (mandatory diets) to reduce government health costs, or ..... Seriously - the U.S. for all its faults is still the most free spot on earth. Also the lowest tax rate (~35%). Unless you buy yourself a private island, and most of us are too poor to do that, so the U.S. is the second-best option.
I cannot think of any place I'd rather be than where I'm at right now... except maybe Tennessee (no income tax). Or New Hampshire.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall