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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."

21 of 767 comments (clear)

  1. 5th Amendment by alain94040 · · Score: 5, Insightful

    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".

    1. Re:5th Amendment by Anonymous Coward · · Score: 5, Insightful

      By living in this country, you hereby have been co-operating with the government, and have therefore waived all your rights.

      I only wish I was joking more than I am...

    2. Re:5th Amendment by fastest+fascist · · Score: 5, Interesting

      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?

    3. Re:5th Amendment by neoform · · Score: 5, Insightful

      If the files were encrypted, there's no way the police could have identified any of the files. It was his fault for helping the police in the first place.

      You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

      --
      MABASPLOOM!
    4. Re:5th Amendment by couchslug · · Score: 5, Interesting

      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."
    5. 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.

    6. 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.

    7. 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)

    8. Re:5th Amendment by palegray.net · · Score: 5, Insightful

      How about a system where, depending on which key you enter, the decrypted contents differ?

      --
      512 MB RAM, 20 GB disk, 200 GB transfer, five datacenters. $19.95/month.
    9. Re:5th Amendment by John+Straffin · · Score: 5, Funny

      I dunno... I'd take everything that guy writes with a grain of salt.

      --
      My contempt for the behavior and beliefs of the two major political parties cannot be adequately expressed in 120 chara
    10. Re:5th Amendment by cayenne8 · · Score: 5, Insightful
      You know....it sounds even more basic to me.

      NEVER cooperate with the cops. If you are about to get in trouble, clam up...get lawyered up.

      Once you start to cooperate a little, it appears....you can start to give up rights you have.

      Some good info is here. Also, look up a film they did, it is available for free called Busted.

      --
      Light travels faster than sound. This is why some people appear bright until you hear them speak.........
    11. Re:5th Amendment by SJ2000 · · Score: 5, Informative

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

  2. Initial cooperation by Imagix · · Score: 5, Insightful

    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)

  3. 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.

  4. Re:We need a destruction password in crypt! by Anonymous Coward · · Score: 5, Insightful

    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.

  5. Whats on the laptop, son? by TiggertheMad · · Score: 5, Funny

    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!
    1. Re:Whats on the laptop, son? by Fluffeh · · Score: 5, Funny

      When asked at the border what that huge suspicious file is on your laptop, do you answer..."

      Well, lets have a look at that now, and see which is the most fitting answer:

      "I don't know, its a encryption contest. First person to decrypt the file gets $10,000."

      Guard: A $10,000 reward eh? I better have a look at this. I need a new holiday...
      Outcome: Laptop lost.

      "Its a raw rendered animation. I am preparing my portfolio to send to Pixar."

      Guard: A new animation going to Pixar eh? I better have a look at this, this could be freakin' cool!
      Outcome: Laptop lost.

      "Its a wadfile I'm assembling for an open source game file."

      Guard: A WAD file eh? What sort of open source sick stuff are you doing you whacko? Come into this little cosy room for a moment.
      Outcome: Laptop Lost. Arrested.

      "It's a dump of an old VAX proprietary database that my boss wants me to port to SQL."

      Guard: Oh, really, a secret mumbo jumbo database huh? Are you sure you aren't a TERRORIST?!? Is that a picture of the George Washington statue I see in your pocket? Better come with me!
      Outcome: Arrested for being terrorist. Thrown into waiting cell for six years.

      "Its a gig of encrypted kiddie pr0n."

      Guard: Oh come on, be serious, if you aren't going to do this baggage check stuff properly don't do it at all. Now shove off!
      Outcome: Guard doesn't believe such amazingly incriminating answer. Thinks you are obnoxious. Tells you to keep going.

      --
      Moved to http://soylentnews.org/. You are invited to join us too!
    2. Re:Whats on the laptop, son? by shutdown+-p+now · · Score: 5, Interesting

      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.

    3. Re:Whats on the laptop, son? by alain94040 · · Score: 5, Insightful

      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.