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DOJ: We Can Force You To Decrypt That Laptop
betterunixthanunix writes "A mortgage-fraud case may have widespread implications for criminals who use cryptography to hide evidence. The US Department of Justice is pushing for the defendant to be forced to decrypt her hard drive, claiming that if they cannot force such decryptions, law enforcement will be unable to gather important evidence. The defendant's lawyer and the Electronic Frontier Foundation have made the claim that forcing such a decryption would be a violation of the defendant's fifth amendment right not to self-incriminate. The prosecutor in the case has insisted that the defendant would not be forced to disclose her passphrase, but only to enter the passphrase into a computer to decrypt the drive."
Here's a presentation discussing the issue of force password disclosures and laptops I gave at DefCon 17: http://www.youtube.com/watch?v=ibQGWXfWc7c
Check the law and make up your own mind.
"The prosecutor in the case has insisted that the defendant would not be forced to disclose her passphrase, but only to enter the passphrase into a computer to decrypt the drive."
I can see that there is a difference between forcing the disclosure of the password and being able to read something that is already decrypted, however I can't see how that wouldn't still be self-incrimination. I assume the police would either bring her to the evidence room and tell her to enter the passphrase, or they would simply demand that she deliver an un-encrypted copy of the drive. Either way they are forcing her to give up evidence that may be used to incriminate. This seems to be a seriously frightening precedent to set.
They would never be able to take someone accused of murder and say, in effect: "look, we KNOW you did it, we just lack all the evidence needed to convict. You are now ordered to show us every place you visited on the day in question, including where the body is hidden."
-d
"Here Lies Philip J. Fry, named for his uncle, to carry on his spirit"
Whoever said that you have to arrange your papers and effects in such a way that the government can understand it?
Does this also apply to paper documents?
Are you not allowed to write your thoughts in a coded manner?
Is it also OK to use euphemisms in your diary?
Is it the government's position that you also have to interpret your diary for the prosecution?
I'm not a lawyer, but I play one on the Internet. Blog
Me too, but EFF's perspective is also useful, and forms a valuable distinction:
(Quote from EFF's amicus brief, emphasis mine)
So, while you can be compelled to surrender a physical object (the key to the safe, in the previous analogy), the 5th Amendment is specifically is about something in your mind.
If the "locked safe" in the previous analogy is not locked, but hidden, can a defendant be compelled to disclose its location?
As to the DoJ's "end run" based on the principle "don't tell us, just type it into the computer".... would the 5th Amendment not apply is a defendant is compelled to type self-incriminating testimony into a computer instead of speaking it to a law-enforcement officer?
The DoJ, IMHaUO*, hasn't got a leg to stand on.
*In My Humble and Uneducated Opinion... IANAL, after all.
Welcome to the Panopticon. Used to be a prison, now it's your home.
Simple solution, just make your pass-phrase "IKilledAGuyIn1998@Work!"
Not only does it meat the requiments of a strong password. Your pass-phrase WOULD be incriminating evidence, and they cannot get you to reveal it.
Si hoc legere scis nimium eruditionis habes
You shouldn't need to be forced to clear yourself either.
"I'm sorry, but I don't recall my passphrase. I guess the stress of this case has made me forget it!"
Wow! That actually is my passphrase.
The thing about encryption is that it isn't so much a "safe", it's more analogous to a private citizen having their own moon on which to store valuables.
It is more akin to speaking and writing everything in your own private language, and forcing the police to determine how to translate that language.
Palm trees and 8
How do I prevent them from adding anything to the system after it is in their possession.
If I turn over my key to the encryption I want a method to ensure than anything they use against me was put there by me, not by them afterward.
Can that be done?
After all, if they are willing to force an issue you can be sure some will make sure something is wrong. Its not like the current Administration is concerned about the rights of its citizens, they are making Bush Jr look like a staunch civil liberties advocate
* Winners compare their achievements to their goals, losers compare theirs to that of others.
I hope the defendant doesn't give in. Personally, I'd rather sit in jail on contempt of court charges than go to big boy prison for whatever the state were investigating me for. At least with the contempt of court charges, I run the chance of becoming a cause celeb for standing up for principles, which is way better than being convicted of a crime.
I got into an argument about this very case with my (non-American) girlfriend the other day. She honestly doesn't get the fifth amendment and assumes that anyone who invokes it is basically admitting guilt, which isn't the case. She's from central America. You would think that people down in that part of the world would have some recent memory of unjust laws. Just because something is the law, doesn't make it right, and it is better for all of us that we keep the fifth amendment intact for cases when the law is not just than to violate it just so that someone can get convicted of fraud, murder or anything else.
Actually, NO, they are not allowed the privilege to "not agree".
If you invoke the Fifth in a criminal case, discussion STOPS. On the spot and there is NO further questioning allowed. Regardless of whether it's a State or Federal Court, per the Fourteenth Amendment and the Fifth.
If you invoke the Fourth and can PROVE that they violated that one, Case DIES on the spot. No further discussion, all evidence that stems from the improper warrant action must be discarded and is forever usable. Again, this is regardless of whether it's a State or Federal Court.
Now...what remains is whether this court deems the forcing you to decrypt things is a violation of the Fifth. Personally, I see it as being so. It's making you potentially incriminate yourself- which is PRECISELY what the Amendment was intended to prevent. It's irrelevant what form that self-incrimination takes. If they don't "see" it that way, you can bet your bottom dollar it'll be appealed right up to the Supreme Court because it's just that- a direct violation of the Fifth as much as forcing testimony out of you on the stand or in a police interrogation room.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
That pesky constitution is why. For that matter, the supreme court has already ruled on this issue. In the US you cannot be forced to give up a password. The DOJ can bitch all they want, but it's already a settled issue.
Perhaps the problem is that the graphics they're using to crack the password just aren't fancy enough...
If the masses can keep you down, you're not the Ubermensch.