Slashdot Mirror
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?
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
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?
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.
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.
... when he initially cooperated? That's like saying that you wave your right for freedom of speech if you shut up for a moment.
1's and 0's should be free.
Here's the full text:
I wonder, which part of "nor shall be compelled" did the honorable judge not understand?
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.
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.
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
How do we blame George W. Bush for this when Barack Obama is the president now?
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.
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*
When asked at the border what that huge suspicious file is on your laptop, do you answer..."
"I don't know, its a encryption contest. First person to decrypt the file gets $10,000."
"Its a raw rendered animation. I am preparing my portfolio to send to Pixar."
"Its a wadfile I'm assembling for an open source game file."
"It's a dump of an old VAX proprietary database that my boss wants me to port to SQL."
"Its a gig of encrypted kiddie pr0n."
Think carefully now...
HA! I just wasted some of your bandwidth with a frivolous sig!
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?
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.
http://www.youtube.com/watch?v=6wXkI4t7nuc
Also, the judge is full of shit. You have the right to shut up at any time.