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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.'"
Why only if the government doesn't already know what it contains? Does that mean that they can force you when they already know what it contains?
That doesn't make sense to me.
No self-respecting tyrant would try to attack your rights without an excellent strawman. In your example, the scumbag is the strawman.
Seriously, cause my own memory really sucks, it would be nice if i could make myself remember things. How do i waterboard myself?
/. Headline: US Appeals Court Upholds Suspect's Right To Refuse Decryption Linked Headline: Ruling Stands: Defendant Must Decrypt Laptop
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?
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.
You have the right to remain silent. You have the right to remain encrypted. Anything you say, do, or decrypt can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?
"I don't think it's selfish, to eat defenseless shellfish." -NOFX
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
Her rights don't depend on you being more or less annoyed at what she's alleged to have done.
That what governments have always done - relied on the ignorance of the populace to usurp the rights of the unpopular to establish a precedent that's eventually used against others.
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."
What encryption product was used? It sounds like it is doing its job.
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
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
What I find heartening is that this is the 11th Circuit Court (Alabama, Georgia, Florida) -- i.e., not a court known for "wacky" decisions. If it were the 9th Circuit I would be more worried that this fight isn't over.
I particularly liked how the court used the government's own analogy of a combination to a safe to make their ruling. The ruling explained that the Truecrypt software shows random characters even if nothing exists on the hard drive, so if the hard drive is like a safe -- as the government contends -- then it can be full of incriminating evidence, or completely empty. There is no way for the government to know without opening the safe. Therefore the government cannot use the argument that the evidence was a foregone conclusion. Additionally, the court (thankfully) acknowledged that just because the defendant owns a safe, is not an indication that any criminal activity is going on. The ruling both turned the government's analogy on its head, and revealed that the court has a fairly good understanding of the technology.
Proverbs 21:19
I'm aware of that. It's a really bad decision. If the officer's testimony that the documents existed was sufficient to prove that the documents existed, the jury should be satisfied without seeing the documents. If the testimony of the officers was insufficient to convince the jury that the documents existed, then there is no foregone conclusion at all.
The decision is facially nonsensical. The judge fails not just at applying the constitution, but basic logic.
Give me Classic Slashdot or give me death!
Is there an encryption system available where if you put in a specifically bad password it damages the data forever?
I have no interest in kiddie porn but I sure as shit don't agree with people forcing me to decrypt.
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.
Give me Classic Slashdot or give me death!
Posting AC, but there's one simple difference:
With a safe, if it's locked, the contents still exist.
If I encrypt a disk, the original data quite literally no longer exists. The encrypted disk is not a "container" for my data -- it is a completely different set of data.
The original data can only be recreated on cue if I supply my encryption passphrase. Therefore, by supplying the passphrase I am creating or assisting in the creation of evidence against me. I'm pretty sure the Fifth Amendment has something to say about being forced to do that.