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."

Comments

Re:5th Amendment

[fastest fascist]

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?

then what proof?

[nebaz]

So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?

Re:5th Amendment

[nasor]

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.

Re:5th Amendment

[couchslug]

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.

He let the cat out of the bag.

[MarkvW]

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.

 

Re:5th Amendment

[RazzleDazzle]

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.

Re:The Ammendment

[AK Marc]

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.

Re:Whats on the laptop, son?

[shutdown -p now]

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:

• Do you belong to a terrorist organization, or do you intend to commit any terrorist acts on the U.S. territory? [Y/N]
• Have you ever taken part or otherwise assisted in genocide, religious persecution, war crimes, or crimes against humanity? [Y/N]
• Do you intend to smuggle drugs or other illegal substances into the U.S.? [Y/N]

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.

Re:5th Amendment

[ArsonSmith]

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.