Defendant Ordered To Decrypt Laptop Claims She Had Forgotten Password

wiedzmin writes "A Colorado woman that was ordered by a federal judge to decrypt her laptop hard-drive for police last month, appears to have forgotten her password. If she does not remember the password by month's end, as ordered, she could be held in contempt and jailed until she complies. It appears that bad memory is now a federal offense." The article clarifies that her lawyer stated she may have forgotten the password; they haven't offered that as a defense in court yet.

Comments

It worked for gonzales

[Anonymous Coward]

If it works in a congressional hearing investigating potential ethics violations of the Attorney General, why not in a court of law?

5th Amendment?

[MasaMuneCyrus]

How can this woman be charged with contempt? Is there precedent in law to ignore the Fifth Amendment?

No person 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.

Re:5th Amendment?

[dgatwood]

Yes. The fifth amendment was repealed by the Patriot Act, along with the first and the fourth. Haven't you been paying attention?

Re:5th Amendment?

[mosb1000]

You are required to turn over documents, and can be held in contempt for refusing. But, of course, the prosecution has to prove you actually have the documents. If you say you lost them, and they can't prove you didn't, they can't hold you in contempt. To my thinking, the same should apply to decryption passwords. I know I'd hate to have my freedom hang on my ability to remember a password.

Re:5th Amendment?

[Kjella]

That depends how broad you think the 5th amendment is. To quote Justice Stevens:

A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe - by word or deed.

Note that this is from the dissenting opinion in Doe vs US, where the suspect was compelled to sign a form - that in itself contained no factual information - requesting information from foreign banks of any accounts he may be the holder of. The court found that they could, just like they could compel you to provide a handwriting sample.

As for a password, the best idea would be to STFU completely because:

The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication, because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. (...) Thus, the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts that imply assertions of fact.

So unless you acknowledge that you're in (sole or not sole) possession of the password, as this woman apparently did, that in itself will have testimonial value. Even if the prosecution has ample evidence for that anyway, you should be able to invoke the 5th. In this case she may have seriously screwed herself there. If there's no testimonial value, there's not much precedent to say one way or the other. Oh yeah, and don't try to destroy any evidence with booby traps. In the search I found that the SOX act was used in a suspected child porn case:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States (...)

Limited to the SOX act? Nope. Destroy evidence and you get up to 20 years in jail. Of course it helps that he stupid fuck admitted to destroying his HDD after the cops came by the first time, but just goes to prove laws will be cross-applied everywhere they can.

Poor woman

[Anonymous Coward]

I often can't remember my password after a week away from the office on holiday. (And we have quite lax policies regarding passwords, no time, lenght or content limits, so I have a fairly easy one I've been using for months....) I might be hard pressed to remember a password after a month, under dures.s

Re:How many Amendments are left ?

[Tim4444]

You mean for the corporation people or the people people?

Re:it is not unusual to forget passwords

[Anonymous Coward]

wish the myth of changing passwords regularly would die.

Re:5th Amendment doesn't apply

[bky1701]

A search warrant does not require participation of the defendant. Neither would them cracking the encryption. It crossed the line into a constitutional violation when you begin to threaten people for not aiding their own prosecution: such as requiring someone to disclose the location of incriminating documents, or giving up passwords to encryption keys.

This is little different than demanding that someone accused of a murder disclose the location of the body, or be held in contempt of court: you cannot win either way. Therefore, it is unconstitutional, not a "legitimate legal process." Even were it considered such by the legal system - which it is not - it would still be unconstitutional and a violation of civil rights in need of correction.

You might consider it reasonable, but I think the fact it is possible to easily forget something like a password makes it unreasonable even if there were any sound arguments for violating the 5th.

Re:Maybe it was ...

[hairyfeet]

If this stands it means that anyone can be detained indefinitely without trial. All they have to say is "We believe this file is encrypted using stenography, give us the password" and since saying you don't know equals contempt of court tada! Instant disappearing person. Hell with most geeks they wouldn't even have to go that far, how many of you have truecrypt on some disc somewhere? all they'd have to say is "The defendant has truecrypt in his possession and we believe he has a hidden volume, give us the password' and tada! Bye bye geek. don't say it couldn't happen because it wasn't too long ago most of us would have never believed the USA would have free speech zones and rendition taxis either.

Kinda sad that after we spent all those years supposedly fighting the USSR because of freedom the wall falls only for us to slowly but surely become like the USSR.

Re:not a sterling example

[bky1701]

I was the only person to know the password to my old computer's login - no longer have any idea what it was. I figure I will just reformat it or bypass the login if I have a need to use it.

However, if it was encrypted, I would currently have a legal timebomb sitting on my desk. This is not right and is clearly unconstitutional. Dressing up the matter does not change that.

Tell them they lost they keyfile...

[Anonymous Coward]

The password is R4ndumbG1bb3r1s# - but I stored the keyfile on megaupload.

Re:Use USB dongles!

[ledow]

And when the filesystem history of your PC shows logs of you inserting that serial-numbered USB key into your PC last week, and using filesystem encryption tools to access it? And sure, you can combat that, but there's always another way to get caught out that you might not have considered. Hell, they can probably tell you the last time you touched the device itself, or inserted it, and into what computer you inserted it by various bog-standard forensic evidence (scratches on the USB connector, fingerprints, etc.).

You don't even know if they haven't been *watching* you insert that USB key by that point (and if they've raided you, there's a good chance they *have* been watching first). They won't tell you that until AFTER you've already denied ever knowing where it was. You've just stamped "guilty" on your own head by being a smartarse.

You can be a smartarse if you really want to, but nothing in the world is clever enough to stop "reasonable doubt" when you play games like that, especially if you're that confrontational. All that will do is make them WANT to put you away rather than plant doubt in their heads.

After a police raid, they'll just have all your possessions. Sure, it'll take a while to catalogue them all but they will. They actually have to. Not only that, they'll know the serial number of every one and maybe even the purchase origin. While you're sitting in an interview room being a smartarse, they're sending out court orders based on your PC and ISP evidence and forensically recording your Slashdot comments (and the above, in the wrong context, could be enough to convict you even in ten years time if that DOES happen!).

You missed the whole point of the article - the US, and the UK, have laws that if they even THINK you really have the key and haven't forgotten it, they'll throw you in a cell until you remember. Be as smart-arse as you like but people have already been convicted and jailed over it because of "reasonable doubt" that they weren't innocent. The law is there, it's written, it's enforceable (whether it's SENSIBLE is another matter and one that takes decades to argue in court) and if they suspect for a moment that you're being a smartarse, they'll use it.

This is how the law works. If you're stopped by a policeman in the UK, he'll pay you zero attention if you're polite, genuine, "I know, officer, I was speeding. It's a fair cop." about it. Start being pricky towards them for no reason and they'll have you for your tyre wear, the rear light, the slightly-covered number plate, look up your insurance, your license, run a check on your name, look through the car for anything you shouldn't have, etc.

It has to be said that it's not an unsuccessful method of law enforcement and anyone with brain enough to be respectful and polite and co-operative will "get away" with things that the idiots who's taking their badge number and threatening them won't. The same applies from the police up to the courts. Hire a good lawyer, be co-operative and polite, play by the rules and you'll get the best result. Be pricky about it and they'll do what they can to dig deeper and inconvenience you.

I can think of ways you could reasonably consider to have good reason to have lots of encrypted USB sticks about that you don't know the passwords too. But being the smartarse will end up with you in jail, whether you "did" anything or not. You can argue about it as much as you like but if the judge takes a dislike to your attitude or methods, they'll put you away at least until your successful appeal.

What do you do? You provide all the information you have and be as co-operative as possible. Why? The laws on that are worded so that co-operation is the better of the two options so that you're *forced* to co-operate or go to jail.

You can argue about self-incrimination, free-speech, etc. afterwards - when the judge KNOWS that you've been 100% co-operative. You can still have evidence stricken, ask for a mis-trial, appeal, etc. but you've been co-ope

Re:Inside my HD there are two very important files

[Richard_at_work]

Your premise is ridiculous, as the court can reasonably assume that you intended to use said encrypted file, and thus pointing to random password generators for the password doesn't cut it because *you* need the password set to use it. Your solution doesn't accomplish anything other than looking stupid here and probably getting your arse handed to you by a judge.

If you are willing to take the legal ramifications for your "honeypot", then go for it, but don't expect a judge to accept your claim as true and leave you alone.

Re:Inside my HD there are two very important files

[kcbnac]

Their assumption may be worth shit, but "contempt of court" has no upper limit on how long you can be held for.

https://en.wikipedia.org/wiki/H._Beatty_Chadwick

Feel like spending the next 1.5 decades in prison, just to wave your dick at the court? Your call man.

Re:How many Amendments are left ?

[alendit]

In any conflict of such an magnitude, where the US military is outnumbered, things like logistics, troop movements and proper command structure will play a MUCH more important role than what guns the each side has. You can't really argue that a rag-tag militia can compete with a trained army in these aspects.

Now, guerilla warfare is a completelly different matter, of course.

Let alone

[Shivetya]

the one fact you did not raise.

In any armed uprising in the United States your bound to have many of those military and police on the side of those resisting the government. Having been in the military and know friends still in it, there is America and there is the Government. You serve the later versus foreign enemies, your serve the former at all times.

Re:Let alone

[Hatta]

Having been in the military and know friends still in it, there is America and there is the Government. You serve the later versus foreign enemies, your serve the former at all times.

Most of the time, when the military is serving the government versus foreign enemies, they're not serving America at all.

Re:How many Amendments are left ?

[fearofcarpet]

Nineteen hijackers and a couple of middle-aged rich kids with daddy issues managed to drag hundreds of thousands of highly-trained military personnel and a couple trillions dollars into a ten-year conflict that killed thousands of people, sent one country back to the stone age, destabilized another, and undermined the basic constitutional underpinnings of the most powerful country on Earth. And it still isn't even clear who "won." I don't think you can predict these sort of things based purely on the number of things or people on each side.

Have you been living under a rock for the last 10?

[MikeRT]

You can't really argue that a rag-tag militia can compete with a trained army in these aspects.

You mean like the insurgents in Iraq who have killed about 5,000 US troops despite being out-gunned, out-numbered and not having the same training as our soldiers? You forget that many of the civilians in that "rag-tag militia" are also US military veterans and have the same training and even more combat exposure than many active duty soldiers. Many of our veterans have a hell of a lot more practical combat skills and experience than our police; the average infantry veteran is easily at the same level as a SWAT officer. In an open fighting, the police would get their asses kicked two ways to Sunday and back by armed veterans who meant business.

Re:How many Amendments are left ?

[Isaac Remuant]

Isn't it just way simpler to divide the nation into 2 ideological factions and raise enmity between them to avoid a unified front against organized forces?

oh wait...

Re:How many Amendments are left ?

[ArcherB]

They don't need to "win." The US military isn't going to simply destroy its own entire nation to "win." There only needs to be enough resistance to force the government to significantly change policies, and that would be relatively easy given the level of armament in private hands.

Also understand that the US military is made up of volunteer civilians. Sure, some in the US military will be willing to fire on US citizens, but I seriously doubt that number will be more than half. While I don't expect a lot of grunts shooting their officers, I would expect an awful lot to not return from guard duty.