Federal Magistrate Rules That Fifth Amendment Applies To Encryption Keys

Virtucon writes "U.S. Magistrate William Callahan Jr. of Wisconsin has ruled in favor of the accused in that he should not have to decrypt his storage device. The U.S. Government had sought to compel Feldman to provide his password to obtain access to the data. Presumably the FBI has had no success in getting the data and had sought to have the judge compel Feldman to provide the decrypted contents of what they had seized. The Judge ruled (PDF): 'This is a close call, but I conclude that Feldman's act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with "reasonably particularity" — namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.'" If the government has reasonable suspicion that you have illicit data, they can still compel you to decrypt it.

Comments

Last Sentence

[steevven1]

Where did the last sentence in this summary come from? It seems to be completely contradictory to the main content. Elaborate?

Re:Last Sentence

[Anonymous Coward]

I believe the distinction is that in Feldman's case, the act of decryption shows that he had access to and control over the storage devices. This, by itself, would apparently be incriminating.

Re:Last Sentence

[TheCarp]

> They could have asked the dog, and he would tell them, but putting dogs on you without probable
> cause is almost certainly illegal search violation.

I would argue the dog itself doesn't even constitute a search since they are so unrelaiable IN THIS CASE. There have been some great studies which have shown that dogs are only really useful in cases where their handler has no notion of what he might find or where. So border checkpoints, or random bomb searches, they are great....

The problem is, that when the handler suspects there may be something to find, the animal almost always "detects" something. A great study recently setup a course to test dogs and handlers. The handlers were told that there were drug and bomb scent samples throughout a church, some of which were marked, some which were not.

The trick: There were no drug scent samples. ALL of the marked spots were fakes, even some which included some meat for the dog to get him interested in it.

The result? Lots of "hits". Only a very small minority of search trials found no hits at all, and the highest percentage of hits were not in the places where there was meat for the dog, but where there was a flag for the handler to see:

https://www.erowid.org/freedom/police/police_article1.shtml

Its really pretty striking that these are allowed at all. Its not even clear why a judge would issue a warrant for something this unreliable.

Re:Last Sentence

[Defenestrar]

Likewise, if there's good reason to believe that you have a different set of books in a safe, or perhaps a murder weapon - you can be compelled to give the combination. By providing the combination you are not confessing to fraud or murder - you already left that evidence; by not providing the combination you are standing in the way of the court to evaluate the evidence.

The fuzzy line is regarding whether there's reason to search in the first place (which is more of a question regarding the Fourth). Should the simple fact that a computer may have aided the crime be probable cause? Does there have to be evidence showing which computer was utilized (like only allowing the search of one computer behind a router's firewall instead of fishing in all of the computers - and what if there's multiple owners?...).

I think a really interesting test case would be if a criminal used a confession or otherwise key incriminating evidence as the pass phrase for an encrypted device. If they plead the Fifth, and then were compelled anyway - how much would be ruled inadmissible?

Re:England

[click2005]

Yeah sometimes we pass silly laws in the UK and other times they do in the States. Its like trying to figure out which pile of shit has the least offensive smell.

Re:Mountain out of a molehill

[Archangel Michael]

We just had a demonstration that most people are willing to live under Marshal Law, have their houses searched, in a violation of the 4th Amendment. We have the federal government actively campaigning for the abolition of the 2nd. People being sued for speaking their mind (1st Amendment), and so on. So what is to protect us from government taking the 5th away? Not to mention that the Federal Government has consistently violated the 9th and 10th.

IF we the people had any balls, we would be dragging President, most (if not all) of Congress into court and charged with treason. Problem is, who is able to arrest the President of the USA for Treason? Who is willing? Obama, GWB, Clinton ..... all are guilty. But stick a (D) or (R) after their name, and all of a sudden 1/2 the people will "like" what they are doing, say "It isn't that bad".

No, it isn't "That bad". It is worse.

Re:Mountain out of a molehill

[CanHasDIY]

Hard to believe those are the words of mayor "You can't have a big soda, or smoke until you're 21, because I'm the government agent and I say so" Bloomberg...

Oblig xkcd is wrong yet again

[Anonymous Coward]

Bzzt. In this real life example, when the guys with the $5 wrench came along, the victim called his lawyer who brought in a judge who wields a $100 wrench.

And it all happened (he beat the $5 wrench guys) because he encrypted. If he hadn't encrypted, he might not have ever known he was under attack (well, ok, in this particular example he actually did; most of the time you don't), wouldn't have been confronted with the $5 wrench, and wouldn't have have had the recourse of getting the judge to come in with his $100 wrench.

Encrypt. More of than not, it results in you defeating your adversary. That's true whether the adversary is your government, someone else's government, a common thief, Google, whoever bought your refurbished drive after you RMAed it, or whoever.

You're stupid and knowingly negligently careless if you don't encrypt anything important. We're all going to point and you and laugh at the non-random misfortune that you consciously chose to experience.

Examples of what's important are: your shopping list, where you're having dinner tonight, mundane thoughts such as "yes, I'll have another beer" and nearly anything else. Anything you say can be used against you, and I'm not quoting Miranda; I'm quoting reality itself.

Re:How did he encrypt it?

[hawguy]

Yeah!
We crimin... drug... pirat... SECURITY EXPERTS want to know!

I think you mean "citizens".

There are lots of legitimate reasons a citizen may want to save information that they don't want even the US government to read. Just because I keep a diary doesn't mean I think some FBI agent should be privy to what I've written just because they suspect that I may have committed a crime.

Re:Mountain out of a molehill

[Anonymous Coward]

If they're willing to have their houses searched, then it is not a violation of the 4th amendment to search their houses. You can give permission to the police to search your house.

Yeah, "permission." They were showing up at houses with teams of something like six heavily armored SWAT members, banging on the doors, aiming automatic rifles at the home owners, and then asking to be "allowed" to look at home.

Want to say no? That's OK, they're backed by literal tanks and even more armed SWAT people, aiming through the windows at anyone they can see from their tank.

So, yeah, they were "consensual" searches. In the same way a mugging victim "consents" to having his wallet stolen in exchange for not being shot to death.

And all this ignores the social pressure to "consent." You're "helping" them catch a terrorist who isn't actually in that part of town! Do you want to refuse and "help the terrorists?" Do you?

This was armed thuggery, pure and simple. The people of Boston should be ashamed of their police and ashamed of their behavior.

Re:Mountain out of a molehill

[moeinvt]

Yes, we live in a dangerous world where people like Michael Bloomberg want to take away our freedoms.

No "terrorist" can ever take away our freedoms. Only governments are capable of using enough force against us to accomplish that.

Re:what happens if it's cracked ?

[Zero__Kelvin]

"I'm sure the FBI / NSA has some supercomputers that could crack his computer in very short order."

That is because you don't understand encryption.