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US Appeals Court Upholds Suspect's Right To Refuse Decryption
An anonymous reader writes "The U.S. 11th Circuit Court of Appeals has found that forcing a suspect to decrypt his hard drive when the government did not already know what it contained would violate his 5th Amendment rights. According to Orin Kerr of the Volohk Conspiracy, 'the court's analysis (PDF) isn't inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.'"
Yes. If the government knows your have child porn on your computer, then they can get a warrant to force decryption.
It's EXACTLY the same thing if they know you have a dead body in your garage they can get a warrant to force you to unlock the garage.
The EFF Covers things pretty well.
http://www.youtube.com/watch?v=gohLZVAJAiI
Watch that.
/. Headline: US Appeals Court Upholds Suspect's Right To Refuse Decryption Linked Headline: Ruling Stands: Defendant Must Decrypt Laptop
The first link is to a completely different case. Similar story, except that one ruled that the defendant must decrypt their laptop and was heard by the 2nd Circuit. The second link refers to the 11lth Circuit case.
Let's say, hypothetically, John Doe gets brought up on child pornography possession charges. He has one computer in his home, and the cops are reasonably sure that said porn was accessed and stored at that physical location only. They order him to decrypt his hard drive, because they know it has evidence of his illegal porn habits. He replies, "No it doesn't. It has other stuff. Stuff you don't know about. You can't see it." Now, they could say that they know for certain that he's a lying sack of crap and force him to decrypt it anyway. No child porn evidence, but he's be embezzling from his company, according to what they find. Now what?
Fruit of the poisonous tree, that evidence would be inadmissible.
This is first year law school stuff...
They can't just "say it". The other case was quite exceptional, the suspect did voluntarily show the decrypted disc to the customs officer, the customs officer found kiddie porn but as the laptop was powered down it wouldn't open again without a password. So they had proof he could access it, testimony that they'd actually observed it and a chain of evidence that the contents had not changed since then. That's a whole different level of knowing than just "knowing" they're involved in something illegal.
Live today, because you never know what tomorrow brings
In the perfect world, that means that anything they find outside of that scope is inadmissible in a court of law, and, that if they investigate further solely based on the information found there, anything they find is inadmissible. Colloquially, it's called "Fruit of the poisonous tree"
Of course, we don't live in a perfect world, and that's not what "fruit of the poisonous tree" means at all. "Fruit of the poisonous tree" only applies to evidence that was obtained illegally. If the search was performed legally, anything a cop sees incident to that search, even if it's outside the scope of the warrant, is admissible.
If a cop illegally searches your house for weapons, and finds drugs, that's not admissible. If he gets a warrant to search your house for weapons, and finds drugs, that's admissible. If he searches your house on exigent circumstances(e.g. he claims he saw a suspect flee towards your property), and he finds drugs, that's also admissible.
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No... You can get a Writ of Habeas Corpus at some threshold. People keep claiming that they can hold you indefinitely under contempt- which isn't wholly true as this violates the Fifth Amendment.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
From the Opinion:
"But random characters are not files; because the TrueCrypt program displays random characters if there are files and if there is empty space, we simply do not know what, if anything, was hidden based on the facts before us. It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating. In short, the Government physically possesses the media devices, but it does not know what, if anything, is held on the encrypted drives."
Unfortunately, you might be held for many years before they finally stop harassing you:
https://en.wikipedia.org/wiki/H._Beatty_Chadwick
14 years in prison because his wife claimed he was hiding money which the judge demanded that he produce for the court. In a child pornography case, you might spend more time in prison for refusing to decrypt your hard drive than you would have spent if you had been convicted.
Palm trees and 8
They could throw you in jail, but if you know that the penalty for refusing to cooperate is less than the penalty for whatever crime your data might provide proof of
You might not know that. The current record for longest time served for contempt of court is H. Beatty Chadwick, who spent 14 years in prison for failing to surrender money his wife claimed he was hiding during a divorce case. He could not have been imprisoned at all had he "cooperated," which in this case meant producing money that he did not have. Now, suppose you are accused of possession of child pornography, and you refuse to decrypt; if convicted, you might spend 5 years in prison, but you might be held indefinitely for failing to decrypt -- it is up to a judge to decide whether or not you have been held long enough. How do you even make a decision in that situation?
Now, deniable encryption systems might help somewhat in these cases, because in the United States the prosecution would have to prove that there is a second secret key that you failed to produce, which in a good system should be a hard thing to prove. Unfortunately, this could also mean being held in contempt if the police claim that they saw incriminating evidence on your computer, so clearly the passphrase you provided is not the one they are looking for.
Palm trees and 8
Actually this is a double smackdown. They hold that
1) The act of decrypting would be testimonial in proving your control over the encrypted container.
2) Even if the decryption wasn't testimonial, compelling you to produce a part of the chain of evidence is also prohibited by the 5th amendment.
This is pretty much a full victory that your encrypted contents are immune from warrants, expect new keylogger laws shortly though... And it still needs to stand in the US Supreme Court before it applies to the whole US, but the ruling seems sound.
Live today, because you never know what tomorrow brings
No idea, but Truecrypt can have 2 passwords, one which unlocks a "fake" set of data, but still hides your real one. Due to the way data is stored while encrypted, there's no way to tell the difference between a second encrypted section and noise.
Wrong. "civil" or "criminal" refers to the type of contempt, not the type of court case during which the contempt occured. Civil contempt is coercive (forward looking), criminal contempt is punative (for something that already occured). Coercing someone to produce evidence is exactly the kind of thing civil contempt is used for.
Under civil contempt the victim is said to "hold the keys to his own cage", which is used as an excuse to deprive him of any sort of due process whatsoever. It's barbaric and should be abolished.
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Is there an encryption system available where if you put in a specifically bad password it damages the data forever?
It doesn't matter, for two reasons.
First, you can't do it, because standard procedure in cases like this is to duplicate the drive contents and do all analysis on the duplicate. If your system destroyed the data when a "duress" password is entered, it would only be destroying a copy.
Second, if you could do it you still probably wouldn't want to, because then you'd be prosecuted for destruction of evidence. I suppose if the penalty for destroying evidence is much lower than the penalty for the crime the contents of the drive would prove, that might be a good idea. But it still seems like you'd be better off just not saying anything.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
You are so close to where the true scariness is about this yet so far. What is truly scary is that with an obstruction charge you have now a situation where you have to prove a negative or get life without a trial! Is there a single file anywhere in your possession you no longer know the password for? All it takes is for some government goon to say "Give us the password" and when you say "I don't remember it" BAM, you get to rot because you have no way of "proving" what you actually do and don't remember.
Got a copy of truecrypt somewhere? Even if you don't have it installed some goon can walk up to a judge and say 'Here is a copy of truecrypt we found on one of his discs. Since this software is used to hide data we believe the suspect has used it to hide illegal activities" and then when you tell the judge 'I don't have a hidden volume" thanks to obstruction you can rot because again how do you "prove" what knowledge is or isn't in your brain? Hell I have NO doubt that I have encrypted files I don't know the passwords to simply because i've played with everything from .RAR's built in encryption to truecrypt to just about every thing ever highlighted on /. and since I was just throwing random crap like text and pictures in them before trying out password crackers so needless to say I didn't give a shit enough to write the codes down and since i have 3Tb worth of space I've not been the greatest at hunting for and deleting old crap.
In the end what makes this so scary is with this they have the perfect catch 22, either you produce some evidence they can stick you with or if you say you can't remember unless you can somehow PROVE that you don't remember, which as pointed out is pretty much impossible, well they can then throw you in a hole and forget where the key is. With crimes IRL they can simply go around you with you cooperating. They can cut open the safe, kick open the door, etc, but with this unless you are using some sort of government approved crypto where the state has a master key you are screwed.
ACs don't waste your time replying, your posts are never seen by me.