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US Judge Rules Defendant Can Be Forced To Decrypt Hard Drive
A Commentor writes "Perhaps to balance the good news with the Supreme Court ruling on GPS, a judge in Colorado has ordered a defendant to decrypt her hard drive. The government doesn't have the capability to break the PGP encryption, and 'the Fifth Amendment is not implicated by requiring production of the unencrypted contents' of the defendant's computer."
If you don't, you'll have to see a man with a $5 wrench...
If there's incriminating evidence, surely this is a perfect example on why the person can't decrypt as it WOULD self incriminate them!
Waiting for an amusing sig.
"I forgot."
I find it funny that a quick search on the subject yielded an article from the same site, with the opposite finding.
Article in 2007: Judge: Man can't be forced to divulge encryption passphrase
http://news.cnet.com/8301-13578_3-9834495-38.html
Article in 2012: Judge: Americans can be forced to decrypt their laptops
http://news.cnet.com/8301-31921_3-57364330-281/judge-americans-can-be-forced-to-decrypt-their-laptops/
I'm fine with them breaking your encryption if they have probable cause; however, forcing you to give the password does seem to have a pretty straight-forward logical path to incriminating yourself (Especially if you are guilty and a subsequent search will yield something on the device).
It's been fairly clearly defined in the past that you are not in any way expected to aid the police during the execution of a warrant, providing keys, passwords, etc is not required be it for the front door, a safe, a computer, etc. You may OFFER to provide them (so they don't need to damage your front door), but you are undre NO obligation to do so.
If the cipher doesn't require the ciphertext to give you a test for determining whether a given key is the right one, then you can claim that any key (including one you just made up from a thermal noise source) is the "real" key, and the fact that it decrypts to gibberish just means you were storing gibberish on the computer.
You won't be believed, but then at that point -- where the government gets to cross-examine and challenge your purported key -- you're pretty clearly coercing testimony, and much more obviously violating the fifth.
Information theory is life. The rest is just the KL divergence.
Since the laws mean nothing in the US anymore. TrueCrypt goes into great detail about making a decoy OS: http://www.truecrypt.org/docs/?s=hidden-operating-system
Is the 21 the one that talks about wealthy not expected to be convicted and the government should bail them out? Excuse my ignorance, I'm not from the US.
the NDAA killed the first, fourth, and sixth amendments.
The NDAA provision is a statutory law, it CANNOT overrule any amendment. If they are in conflict, then the NDAA loses.
And after that, WTF? How did it kill the first amendment? Did it establish a relgion? Prohibit the free exercise of religion? Abridge the freedom of speech, or press? Or our right to peacefully assemble? Or did it eliminate our ability to petition the government for a redress of our grievances?
The second amendment has been dead for decades.
WTF? The Supreme court just recently ruled that the District of Columbia, and later a state jurisdiction as well are unable to effect regulation of gun ownership in a way that prohibits the ownership of a gun by the general citizenship. No less, the ruling also enforced that regulation of gun ownership cannot require that the gun be dismantled, or otherwise stored in a non-functional state.
And before anyone brings up the dissenting opinions in those cases, even the dissenting opinions stated that the 2nd amendment CLEARLY applies to all citizens, and not just to militia forces.
I think only the 21st amendment is safe in the entire constitution.
Your apocalyptic rhetoric is unnecessary hyperbole.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
You realize that you can be held indefinitely on contempt charges? As in, for the rest of your life or until you comply? There's no violation of your rights in that case because you are considered to hold the keys to your own cell, as it were.
"Sorry your honor, I used a very long password made up of computer-generated, random characters: one that I could not possibly remember. I had it written on a scrap of paper on my desk and would only need to type it in on the infrequent chance that I had to reboot my computer. .... You should ask the detectives to re-search through the evidence they collected as the scrap of paper is likely in what they took."
Remember, kids: if you have to do something illegal, do not write it down. Anywhere. Once you do, it's no longer something contained solely in your mind and nowhere else, and it is probably subject to subpoena, which will be deemed eminently legal. Don't put it in your diary. Don't tell anyone (you'll lose your expectation of privacy). If you must break the law, never ever speak about it. Do it and move on.
No American judge gonna force me to decrypt anything !
I ain't gonna buckle under America's draconian laws
Muchas Gracias, Señor Edward Snowden !
You know, I can't find the citation right now... but you're ...sort of right.
If it's a physical key to a safe, and you have it, you must provide it.
If it is a /combination/ to a padlock -- you're not.
Of course, the feds don't give a shit since they're a pair of boltcutters or a drill bit away from the inside.
The real question would be if you had an 'unbreakable diamond safe with a combination' if they could require you to produce the combination.
Frankly, I choose to say no. When you create a class of crime for which there exists an innocent person who could not possibly prove prove innocence, you've created something that should not exist.
Of course, they are supposed to prove guilt in the US -- but the notion of knowing the mind of the criminal... is...fallacious at best.
Requiring a man to provide something from the contents of his mind is the very equivalence of creation of thoughtcrime.
"Prosecutors in this case have stressed that they don't actually require the passphrase itself, and today's order appears to permit Fricosu to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding "the password to the drive, either orally or in written form."
So this quote makes me wonder, what encryption software is out there that can be configured with a "doomsday" passphrase that will automatically begin some sort of secure delete process when entered? Of course with a fancy "decryption in progress" dialog window or something?
I guess if they figure out what you did, you could be charged with destruction of evidence but if that is a lesser sentence than the wire fraud it wouldn't be a bad move.
I think one of the first things they do is make an image of your hard drive, preserving the data, no matter what you do to it. Much better to keep the key itself on destructible media and destroy it when the cops knock at your door. Or steganographically hide it in plain sight in the digital picture frame with your kid's pictures. Without the passphrase, they can't prove that a suitably random key exists in a JPG.
destruction of a key is not destruction of evidence. The evidence is still intact - just encrypted.
Operation Guillotine is in effect.
5th amendment protects one against oral testimony against oneself, not self-incrimination or being forced to provide evidence.
The 5th amendment doesn't specify "oral testimony against oneself"
It says:
No person shall be ...compelled in any criminal case to be a witness against himself.
That is fairly broadly worded such that giving a passphrase can certainly be witnessing against oneself as it means providing information (witnessing) against yourself. Not to mention that the passphrase is in your head, so it isn't a physical thing to hand over either.
Which brings us to the 4th amendent which is supposed to keep the government out of our personal effects.
People seem to forget that the amendments to the Constitution do not give us any rights, but rather they limitthe government and how far they" can infringe on our "natural rights."
You are aware that the first thing they do is to create a copy of the files. Actually, an image of the file system.
The very first thing you do in forensics is to create an image. Standard procedure. A bit for bit identical duplicate. Destroy it all you want, the only thing you accomplish is to piss me off because I have to repeat that procedure.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Using it will scramble the disk beyond ANY recoverability.
And then you've committed the crime of tampering with evidence / destroying evidence. Good luck evading conviction for that.
No, your only hope is to set up a random password whose mnemonic is something the *police* will destroy when they search your premises, as in "Your honor, my password was recorded by the order in which I kept Skittles on my desk but the act of collecting these Skittles destroyed my record of my password. It is irretrievably lost due to the actions of the police. I would help if I were able but my memory is wholly inadequate, and the only record was destroyed by the police."
I can see the fnords!
so remind us all how PATRIOT got passed??
I didn't say that unconstitutional statutory law cannot be passed. I said that it cannot overrule the constitution, and thus is null and void. ... I'm going to note here as well, that doesn't mean that the executive won't enforce an unconstitutional statutory law either, but you're perfectly within your first amendment rights to petition for a redress of your grievance with the courts.
For instance, Rosa Parks committed a crime by not sitting at the back of the bus. She was arrested and sent to jail. Civil disobedience is one of the fastest ways to get a legal argument for unconstitutionality before the court, but it does not come free, and it does not exempt you from suffering as a result of breaking the law. However, if the courts do eventually agree with you, you can seek compensation for being punished for violating a law that was null and void. But you will still have to suffer harm at first.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
This has been talked about on the TrueCrypt forums ad nauseum: A suggestion that the utility has a password that would erase volumes.
First, it is part of forensic practice to whip out a hardware write blocker. No hardware write blocker, and the evidence can be thrown out of court.
So, if someone hands a decent forensic analyzer a key, and it zaps the contents of the image, they just roll back the logs, add a destruction of evidence charge.
In the UK, it is illegal to "fail to provide" they key when asked. Therefore, it is, in fact, illegal to forget the password, illegal to lose the password and illegal to have never known the password in the first place, to an encrypted volume in your possession.
Yes, seriously.
Disk encryption software already supports hidden volumes. Even if this kind of decision becomes dominant case law, that won't accomplish anything. People will just start deploying volumes with two passphrases, and when ordered to give up the passphrase, giving up the one that decrypts grandma's recipe collection.
Since there's no way to prove that a second volume exists within the blank space of the first one, encryption will win the day.
I made a PHP/MySQL library that prevents SQL injection & makes coding easier!
First, why not use the obvious countermeasure here. When you create an encrypted volume, you should enter 2 keys, not just one. One will unlock your drive, another will appear to unlock your drive, but in fact deletes the contents of the disk entirely. Essentially it replaces the on-disk encryption keys (which is what your password in reality unlocks) with keys that are only useful for the second partition. The second partition is then enlarged to extend over the original copy. Several programs provide this ability (granted they're for-pay and not cheap, but nevertheless, your privacy is worth something to you isn't it ?). This trick is known to have worked in China (that must have taken some serious amount of balls).
This is how banks do it (one code unlocks the safe, another, seemingly identical sets of an explosive charge destroying the vault's contents).
As for the extradition, let's hope for UK encryption users that they do that. After all, in the US, the above judge will probably get called back, providing such horribly weak justification. Even if this stands, the reality is : in the UK there is zero doubt : authorities can imprison you for not revealing passwords to them, in the US there is doubt (as the supreme court has not yet ruled on a case like this), with predictions that this judge's decision will not stand.
Very subtle, adding the bit about Bush about this judge. As if it's relevant. Nobody ever points out that democrat-appointed judges blocked the repeal of slavery for decades ... And that's equally relevant to today's democrats as this decision reflects on republicans.
In the UK, it is established legal precedent to imprison people for refusing to reveal keys. (in fact this can be applied to foreignors in the UK)
And of course nobody seems to have read the entire article. May I present a blatant repeat of a few paragraphs that seem to have escaped most people's attention ?
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).
A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted. the article fails to mention this was not his laptop, but government property. He had signed that he would provide access to a govt administrator. So an obvious detail : you can rely on ecnryption, but don't rely on your employer doing it for you. Also : read contracts BEFORE signing them
The article provides a thoughtful conclusion :
Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?
First, why not use the obvious countermeasure here. When you create an encrypted volume, you should enter 2 keys, not just one. One will unlock your drive, another will appear to unlock your drive, but in fact deletes the contents of the disk entirely.
Problem is that forensics officers take backups. They'd back up the drive first and boot from the backup so whether it destroys the data or not is irrelevant. And if you gave the officers the "self destruct" password that horked the backup then that is further evidence that you are up to no good.
What you need instead is a hidden volume. The idea is you have a normal OS and a hidden OS where your dirty secrets reside. You are prompted for a password at boot time and the password you enter determines which volume is booted into. Tools like Truecrypt support this already.
The problem is the very fact you are using an encryption tool which supports hidden volumes is likely to raise suspicions that you have a hidden volume even if they cannot prove one exists. At the very least you would have to ensure the decoy volume looks plausible, e.g. you use it frequently for your non incriminating activities, scatter around some sensitive looking but non incriminating documents, all to give the impression that is the one and only volume. The more plausible the decoy is, the more plausible your defence is after you hand over the key.
Even then they might catch you out. by building up a list of inconsistencies of activity shown by the computer's event log and other logs on the HDD vs what they can glean from other logs. e.g. if they might know you were on the internet at such and such a time, or downloaded a particular file, or your phone says it was USB synced at the time yet your OS has no knowledge of these events. Enough inconsistencies combined with evidence of using crypto that supports hidden volumes combined with other evidence they have might still be sufficient to find you guilty.
What you need instead is a hidden volume. The idea is you have a normal OS and a hidden OS where your dirty secrets reside. You are prompted for a password at boot time and the password you enter determines which volume is booted into.
What you need instead is two hidden volumes. The idea being that when you decrypt the normal OS with a tool that supports a hidden volume and people find it squeaky clean, they'll tell you "ha ha now tell us the other password" so you have a hidden OS where your porn resides, and a hidden OS where your dirty secrets reside. Ad nauseum depending on how nauseous your dirty secrets are.
If I have been able to see further than others, it is because I bought a pair of binoculars.
Even then they might catch you out. by building up a list of inconsistencies of activity shown by the computer's event log and other logs on the HDD vs what they can glean from other logs. e.g. if they might know you were on the internet at such and such a time, or downloaded a particular file, or your phone says it was USB synced at the time yet your OS has no knowledge of these events. Enough inconsistencies combined with evidence of using crypto that supports hidden volumes combined with other evidence they have might still be sufficient to find you guilty.
Maybe... But I would submit that their phone likely wouldn't be configured to sync with the "dirty" volume. And, of course, a truly "bad guy" wouldn't be using a smart phone... he'd be using a simple burn phone, dialing all numbers from memory, and calling only other burn phones.
Finally, it seems like a much better idea to use a bootable USB that you encrypt somehow to house your "secret" volume. Boot your machine to the flash drive, when you're not using it hide it somewhere. Done with it? Wipe it, encrypt the blank drive then change the keys and throw it in a river.
Granted, it is slower than booting off your internal SSD/SATA2-3 buuut... you can't always have privacy & convenience.
Who did what now?
A single hidden volume is good enough, maybe better than multiples (I'm not sure there is software which supports more than 2 volumes total, you get into trouble with volumes potentially overwriting each other's contents since they each have to not know about the others). A single hidden volume creates plausible deniability, because the default configuration is no hidden volume.
Now here's the problem with secondary volumes. In order for it to be plausible, you need to keep the red herring volume up to date. It needs to have files with recent timestamps on it and so forth. If they look in there and all the files are out of date and haven't been modified in 6+ months, it's not credible and threatens the plausibility of the denial. It works poorly for whole-disk encryption unless you're very good about doing most of your work in the primary volume, and only booting into the secret volume for short periods of nefarious activity.
It's possible to mount both volumes at once, and just be careful about sticking all the evidence on the secondary volume, but in most modern OS's, there'll be problematic artifacts indicating the secondary volume exists in the form of "Recent Files" lists in applications or in the OS level. You'll also have to worry about program caches being written out to the primary volume and being recoverable from free space on the drive; so as part of shut-down you'll need a script which writes random data to the empty space and knows how to destroy the internal cache files of all your applications - even ones you don't use for nefarious purposes since a cache file may not be zeroed out when it's allocated (thus capturing sensitive data). Basically keeping both mounted at the same time is a sure fire way to accidentally leave behind some evidence on the "safe" drive.
The only safe way to do this is to dual-boot sensitive and non-sensitive volumes. Boot into the sensitive volume only for secret activities, and otherwise be booted up on the non-sensitive volume for everything else. You can see why maintaining multiple red herrings is problematic, and since the plausibility of the denial does not significantly increase, while the chances of leaving behind some indicators of a tertiary volume increases significantly, you're better off with a single hidden volume. As a final note, if you do maintain two red herring volumes, your secondary volume needs to have a reason you'd keep it secret. If there's nothing sensitive on there, it's too obvious of a distraction; you might as well label the volume "red herring."
Slay a dragon... over lunch!
As naive as it may sound, why not just do less illegal stuff?
Who says they are doing illegal stuff? The government's alleging it, but in the ordinary course of events, the 5th Amendment is supposed to protect us against being required to give evidence against ourselves. We are supposed to be presumed innocent until proven guilty in a court of law.
And yet, the cops can get away with feeding people information, planting information, and pulling every dirty trick they can come up with to try to get a conviction, innocent or not. The US history books are replete with innocent people railroaded by a corrupt system. The evidence in the Troy Davis case, where police intimidated and coached witnesses and doctored evidence, shows that an innocent man was put to death just recently by the corrupt system.
I'm not advocating doing illegal stuff, but I am suggesting that you probably want to keep your affairs under wraps anyways, even if fully legal. The moment you start waiving one of your rights, courts start ruling you also waived others.
And unless you think I'm joking, consider the case of a police officer coming round to your house because he wants to "ask you some questions." Maybe he claims it's about a neighbor's domestic disturbance. Maybe there was a noise complaint that your dog was barking too loud late at night. Could be any number of things. You let him inside to "talk." Courts in some jurisdictions have ruled that by opening the door and letting him pass the threshold, you just consented to him searching your house for anything he might find suspicious.
Or say you get pulled over by one of the famous Texas "you got a taillight out bud *nightstickcrashbreaknoise*" Badged Highwaymen. You get out of your car but leave it unlocked, or do you lock it and hold on to the keys? In the first case, some courts have ruled that by leaving it unlocked you consented to it being searched!
The point again is: once you start waiving your rights, you wind up giving up others. And it keeps going and going and going. You think you're "cooperating with the police" and that they will like you and not charge you with anything and treat you nice because of it? Bullshit - the police are the initial arm of "evidence gathering" for prosecutors, a set of conscienceless, amoral assholes who see all citizens as nothing more than a potential conviction notch in their belts.
What's wrong with cops lying to or misleading suspects?
Aside from the fact that it is KNOWN to make innocent people plead guilty? Aside from the fact that it makes the already dirty cops look that much closer to using forged evidence?
It's a valid tactic...
And if you had this thing called a "conscience" you'd realize it should NOT be valid. Period.
I'm not saying innocent people haven't been railroaded, many have, but reality doesn't permit police (especially in crime-ridden cities) to be knights in shining armor. Crime is an ugly thing, why would trying to solve it be much prettier?
Every time I hear someone like you I want to throw up. What was it our justice system used to be about? Didn't Thomas Jefferson say he would rather a dozen guilty men go free than see one innocent man convicted? When did we abandon our principles?