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

Nurz

[Anonymous Coward]

V qba'g xabj, guvf ybbxf yvxr n ernfbanoyl fhfcvpvbhf cbfg gb zr...

Re:Nurz

[ciderbrew]

Ha Ha ha haaa. Dyslexia is the best.

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

[TyIzaeL]

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"

I'm guessing this is the trick. The government doesn't know there is evidence on the storage device. It sounds like they are making the argument that compelling a password for discovery purposes is a violation, but providing one to give them what they know you have is not. At least, that's what it seems like they are saying to me.

Re:Last Sentence

[MDMurphy]

It came from the linked article that references a rejected appeal in a bank fraud case concerning turning over an encryption key.

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

[SYSS Mouse]

By ordering to decrypt, the accused is compelled to tell the government what they are not already known, that is, the content of the encrypted drive that could be evidence against accused . Hence the 5th Amendment Violation

Re:Last Sentence

[Spectre]

In other words, if the law enforcement had a reasonable suspicion you have incriminating data of a particular kind (perhaps a list of the prostitutes you pimp for, whatever) and a reasonable person would assume that data is on the encrypted media, they could go through channels (subpoena, search warrant, some form of judicial writ) that would require you to decrypt the media for a search for that specific data.

If law enforcement merely thinks you are a criminal (because you are living "above your means") and wants to go searching through all of your data just looking for "something illegal" ... that would fall afoul of the fifth amendment.

At least, that is my interpretation.

Re:Last Sentence

[Anonymous Coward]

I'm no lawyer but I think the central issue here is providing access to the encryption key would establish a relationship between that content and the accused. A relationship that is not already established.

Somehow this is different than providing access to encrypted content of hardware you clearly own because it is not about compelling decryption it is about establishment of linkage between individual and encrypted content.

Re:Last Sentence

[zero.kalvin]

I have the same question, but I think they meant that if they feel that you have data about something important going to happen. Like the Boston bomber if they had suspicion that his data contains information on more stuff to happen they can compel him to decrypt it. But I could be wrong.

Re:Last Sentence

[Anonymous Coward]

It's a wink-wink that they have to add "possession of child pornography" to the charges also in order to compel the keys.

Re:Last Sentence

[Anonymous Coward]

And this case is far far more specific. There is evidence far above normal business practices that he put a known illicit file on one of the two encrypted drives and yet they can't compel it; because they can't already prove he has access to the drives rather than some other person for which there is no evidence that he even exists.

Re:Last Sentence

[kwark]

Not a native english speaker, but to me compel sounds like:
Would you pleeeeeeeeeeaase decrypt, with lots of sugar on top. It's not like you having to hide, isn't it? So show us you are innocent.

Re:Last Sentence

[gnasher719]

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

In this particular case, whether the defendant knew the password or not was in itself something that could be used as evidence against the defendant. Even if the hard drive had been destroyed or lost, supplying the password could be used against him. In a different case, if it is known that there is encrypted data and it is known that you have the password, and there is no evidence in the password itself, then they can compel you to decrypt.

Re:Last Sentence

[Yebyen]

It reads differently to me. They do not know that he can decrypt the data (he could have destroyed the passphrase, or it was destroyed when left in the hands of an automated system and he was incarcerated), and compelling him to do so would be a) demanding that he prove that he could decrypt them, a "fact" about him that is not already known to be true (and could be incriminating.)

The last sentence in the summary reads like nonsense to me and does not seem to contribute anything.

They cannot compel you to do something they don't already know that you have the ability to do, and if it turns out later that they can decrypt the drive without your help, the fact that you were able to decrypt it would be the incriminating part (apparently) as much as whatever they had actually found on the drive. Even if they know there is illicit stuff on the drive (somehow) without having decrypted it, they do not know you have control over it (unless this was proven some other way.)

It's like those cops that ask, "do you have any illegal drugs on you" -- if you show them, you waived your right to be protected from unreasonable search and seizure. They did not violate it. You did. Has your fifth amendment right been violated? 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. If you are threatened with contempt if you do not decrypt the drive, even when they haven't proven that you even can, it's much the same situation.

Re:Last Sentence

[gnasher719]

By ordering to decrypt, the accused is compelled to tell the government what they are not already known, that is, the content of the encrypted drive that could be evidence against accused . Hence the 5th Amendment Violation

Wrong. They have the right to the information on the encrypted drive. What the government doesn't know is whether or not the accused is the one putting the encrypted data there. If he has the key, he is guilty - no need to decrypt the drive! If he doesn't have the key, he is innocent (all slightly exaggerated).

Re:Last Sentence

[SternisheFan]

From the linked Wired article:

Just last year, for example, a federal appeals court rejected an appeal from a bank-fraud defendant who has been ordered to decrypt her laptop so its contents could be used in her criminal case. The issue was later mooted for defendant Romano Fricosu as a co-defendant eventually supplied a password.

Contrary to the Wisconsin child pornography case, however, the Fricosu matter was distinguishable because the authorities had evidence that her hard drive might contain evidence against her, meaning the court felt her Fifth Amendment rights were not at issue. That’s because the authorities had recorded a jailhouse conversation between her and a co-defendant, in which the laptop’s contents were discussed

Re:Last Sentence

[AdmiralXyz]

It brings encryption keys to pretty much the same status as locked safes. The government can't just order you to open it on a whim, but they can if they have reasonable prior evidence that there is illegal material contained within. To illustrate:

Scenario 1: As a citizen, I step off the plane after getting back from a foreign country. Not knowing who I am, ICE goons randomly pull me aside and order me to give up the encryption key to my laptop. They have NO reasonable suspicion that doing so will yield illicit material or evidence of wrongdoing, so the Fifth Amendment applies.

Scenario 2: I'm a corporate officer cooking my books, and I brag to my friend that the feds will never catch me because all the incriminating evidence is encrypted. Unfortunately my friend has agreed to cooperate in a plea deal, and relays the details of this conversation. Now the government has reasonable suspicion (actually, at this point I think it's probable cause) that my encryption key is concealing material evidence, and they can probably force me to reveal it.

/. probably won't be happy with that last sentence, but IMO as long as judges interpret "reasonable suspicion" correctly (which is usually the case), it's probably the right call. The government always has been able to force you to open your safe deposit box if they have a warrant, after all. This is nothing new.

Re:Last Sentence

[janeuner]

It is explained in the ruling, explicitly.

Page 8: "But the following question remains: Is it reasonably clear, in the absence of compelled decryption, that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein?"

Page 9: "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."

Paraphrased:
> If the government has reasonable suspicion that illicit media exists, and can verify you have access to that illicit media, it can compel you to retrieve that media.
However,
> If the government has reasonable suspicion that illicit media exists, but can not verify you have access to that illicit media, it can compel you to retrieve that media.

Even if the government could access the media, it would still have to demonstrate that the defendant could also access the media. By accessing the illicit media, the defendent is demonstrating possession of the illicit media. This amounts to self-incrimination, which is protected by the Fifth amendment.

Re:Last Sentence

[hedwards]

Wrong, the government has the right to break into the data, but not to force somebody to interpret the data for them.

This would be a bit like if you had a secret crime lair where you kept all the evidence of your misdeeds. The government would have a right to search for it, but if they couldn't find it or couldn't figure out how to open it, they couldn't force you to open it for them or tell them where it is or acknowledge its existence.

What's more, they couldn't force you to incriminate yourself against other crimes that you might have committed by revealing that evidence to them.

The only exceptions I've heard about to the protection are cases where LEO already knew what was inside the container and had seen the materials prior to being shut out of it.

Re:Last Sentence

[Virtucon]

Not from me.. ;-)

Re:Last Sentence

[FuzzNugget]

In TFA, they state that, in the latter case, the accused was compelled to reveal his encryption key because he was recorded in a discussion where he talked about the encrypted [device] containing incriminating information.

In the former, the prosector's request was just a fishing expedition, so it was denied.

It is an unsettling distinction. Computers hold so much information about nearly every aspect of our lives, it really doesn't seem right that one piece of evidence allow that to be pried wide open.

Would a warrant be issued to tear apart your home if it was overheard that you had a doobie in your sock drawer or would they limit the search to your sock drawer?

Re:Last Sentence

[janeuner]

Incorrect. The government knows that the specified files are (or were) on the storage device at some point. What it lacks is evidence that the defendant is capable of accessing that storage.

Re:Last Sentence

[janeuner]

Bleh, the second paraphrase should read:
> If the government has reasonable suspicion that illicit media exists, but can not verify you have access to that illicit media, it can not compel you to retrieve that media.

Re:Last Sentence

[Sulphur]

I'm no lawyer but I think the central issue here is providing access to the encryption key would establish a relationship between that content and the accused. A relationship that is not already established.

Somehow this is different than providing access to encrypted content of hardware you clearly own because it is not about compelling decryption it is about establishment of linkage between individual and encrypted content.

Suppose the password is shared?

Re:Last Sentence

[IndustrialComplex]

Not quite right.

The government is asking for information which would demonstrate that he had the capability to access the information in a device. Such an admission would be useful to the prosecution which must account for the custodial chain of the device and the data within it.

An example of a situation where you might require this sort of defense:

1. You buy a computer from Bob on Craigslist. You stick it in your garage to work on later.
2. Bob is busted for something, and when questioned about the computer, says he sold it to you.
3. The police arrive at your house, and with a warrant seize the computer from your garage.
4. It turns out that 'Bob' was selling CP or something similarly illegal. The prosecutor decides that YOU purchased the computer/HDD as part of a purchase of CP from Bob.
5. You claim that you have no idea what is on the machine, and the prosecutor demands that you provide the encryption key to decrypt the files for search.

At this point, if you were to provide the encryption keys, it would demonstrate that you DID have the ability to access the files on the computer, this would be providing evidence to the prosecution that you were part of the chain of custody.

In the case where the person WAS compelled to turn over the encryption key, the prosecution already had evidence that the person already could access the encrypted device/file. Therefore, by turning over the encryption key, the person was not providing any evidence that the prosecution did not already have.

So if in the example I provide above, you had made a statement that "Hey, Bob sold me a computer, and you wouldn't believe the nasty stuff he had on it in an encrypted file." That would mean that you could not plead the 5th as it would already be a fact that you could access the encrypted file, so providing the keys wouldn't be giving any evidence to the prosecution.

Re:Last Sentence

[OptimalCynic]

No, compel means force. "Do it, or you'll rot in jail."

Re:Last Sentence

[NatasRevol]

Compel means do what we ask, or sit in jail until you do what we ask.

Re:Last Sentence

[Spazmania]

No, the trick is this:

The government hasn't proven that Feldman *has* the encryption key. Compelling him to turn over the encryption key would be compelling him to admit that he has the key. The compelled admission that he has the encryption key is the fifth amendment violation.

Had Feldman admitted that he had the key or if there was prima facie evidence that he possessed the key, the government could still compel him to provide it.

Re:Last Sentence

[NatasRevol]

Just curious since I seem to have missed this.

When did being compelled to decrypt a drive, even if there is known evidence there, skip around the fifth amendment ie avoiding self-incrimination.

Re:Last Sentence

[IndustrialComplex]

Would a warrant be issued to tear apart your home if it was overheard that you had a doobie in your sock drawer or would they limit the search to your sock drawer?

If the evidence was what you presented, and they searched your kitchen cupboards, a lawyer would probably get any cupboard evidence suppressed. If they found heroin in the sock drawer, they could use that evidence.

Re:Last Sentence

[rtb61]

They can compel you to try, they can not compel you to succeed ie this is what the password should be #V3ry@L0nG@Pa55W0rd# but it doesn't seem to be working, perhaps I entered the wrong key last time I changed it and all the stress of the prosecution is making me forget which special character, which capitals and actual phrase but I 'WILL' keep trying. I truthfully have forgotten quite a few passwords in my time and either lost the data or was forced to use other methods to access it. You only have to look around the internet to find all those "lost password/lost username" assists, pretty much every site that wants a log in. So forgetting your password is reasonable.

Re:Last Sentence

[Yebyen]

We have to pass the bill to know what's in it...

The argument I've heard is that, when information is at rest, it's not considered testimony for the information to be read (but some other form of discovery). Therefore if it can be shown that you're in a position to decrypt the drive, and the drive is admitted in discovery and you refuse to facilitate discovery, you are standing in the way of the discovery and can be held in contempt of court.

If it has not been shown that the drive can be decrypted with information you have, or could reasonably be expected to have (say, it can be shown by inductive reasoning that the drive contains the log of your activities), or if for example the ownership of the keys or the drive and the encrypted data is in question, it's not reasonable to compel you to decrypt it under penalty of contempt. It hasn't even been shown that it's in your power to facilitate the discovery.

You can be similarly compelled to provide paper documentation, even if it was sent through the mail. It's not testimony. It's facilitating (or obstructing) discovery.

Re:Last Sentence

[gnasher719]

This would be a bit like if you had a secret crime lair where you kept all the evidence of your misdeeds. The government would have a right to search for it, but if they couldn't find it or couldn't figure out how to open it, they couldn't force you to open it for them or tell them where it is or acknowledge its existence.

A better analogy: There are guns hidden in a locked cupboard. It is locked, but can be opened with brute force. The police ask you to unlock it.

The fact that you have the keys to unlock the cupboard is evidence against you. The police will get the guns with or without your help, but without your help, they find it much harder to prove that you owned the guns or knew about them. In this case, the fact that you can decrypt the drive can itself be evidence against you. Imagine the police lost the hard drive, buys an identically looking replacement, encrypts it, and asks you for the decryption key - just to get evidence that you had decryption keys for the original drive.

Re:Last Sentence

[NatasRevol]

Interesting, and good to know.

From a non lawyer point of view, discovery that you provide, about yourself, sounds an awful lot like testimony against yourself.

Re:Last Sentence

[gorzek]

Basically, it is a crime to withhold evidence that the government knows you have. But you can't be compelled to provide evidence against yourself that the government doesn't know you have.

Re:Last Sentence

[gorzek]

In other words, the key itself is considered evidence, rather than simply a means to an end. In order for the government to demand it, they would have to know you have it, and in this case, they couldn't demonstrate such knowledge.

Re:Last Sentence

[Yebyen]

I agree and I am not a lawyer, however, I can see the argument that discovery is not testimony and I think I have it laid out approximately right. I am the IRS. I am investigating you for tax fraud. It's not illegal search for me to compel your bank statements (and not just because I'm asking the bank, rather than simply asking you to incriminate yourself. If it's known that you keep a ledger of your business dealings that could contain incriminating information, that can be compelled as well. Destroying it or refusing to provide it would be obstruction.)

Re:Last Sentence

[cold fjord]

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

From summary: If the government has reasonable suspicion that you have illicit data, they can still compel you to decrypt it.

IANAL - however.... ;)

At least one possibility is that you can be granted immunity and compelled to testify or produce.

Kastigar v. United States

(1972), 406 U.S. 441 -- Use and derivative use immunity is coextensive with the protection of the Fifth Amendment. If a person who has been compelled to testify under a grant of immunity is later prosecuted, it is the burden of the government to prove incriminating evidence is derived from a wholly independent source.

I believe there may be other possibilities as well.

Re:Last Sentence

[Impy the Impiuos Imp]

That's what I got out of it, too.
Three possible issues here:
1. They know there is particular info encrypted and want it as additional proof.
2. They suspect, or are just fishing.
3. The very act of providing the password gives additional incriminating evidence of your involvement.

If a safe or door is locked, giving the combo or key location is not quite the same because they can open it the hard way if they have to. No such possibility exists (yet, probably) for heavy encryption.

Personally, I think it should be a violation in all cases. The big historical problem over the centuries is not common criminal behavior -- it is governments abusing searching to maintain their own power. History tells us we have no confidence it won't in the long term, so don't authorize government to begin with.

Re:Last Sentence

[Yebyen]

Yes, perfect. Although I am having a harder and harder time imagining a scenario where the government can realistically prove that you have something in the way of evidence, but they don't know exactly what it is (and they need your help to read it.)

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:Last Sentence

[laughingcoyote]

The critical difference in Scenario 2 is not actually reasonable suspicion. The difference in Scenario 2 is that the authorities now already know the encrypted data belongs to you, because of your friend's testimony. Decrypting it for them will not prove that you're the owner of it, they already know that.

On the other hand, if they just suspected (even with probable cause) that the encrypted partition contained evidence of malfeasance, but didn't already have conclusive proof it's yours, requiring you to decrypt the data tells them something they didn't know; namely, that you have access to that encrypted data. That's exactly where the Fifth applies. They can get a warrant for the data, but they can't force you to admit it's your data.

Re:Last Sentence

[cayenne8]

Had Feldman admitted that he had the key or if there was prima facie evidence that he possessed the key, the government could still compel him to provide it.

So, the best thing to do, if any police or govt agency starts to ask you questions, you should immediately NOT talk to them, and lawyer up. Don't give them any information (such as this).

From what I've been reading and watching, this is especially true if you are indeed, innocent.

Shut up. Lawyer up.

Re:Last Sentence

[idontgno]

Now, define "know".

Is it the kind of "know" that torturers use when they say "we know you did it, just admit it and we'll stop waterboarding you"? Not very helpful.

Re:Last Sentence

[Yebyen]

Awesome argument. I have heard this too. Although if you do consider the use of the dog a search, it might save some property damage, assuming they find the drugs and didn't have to tear your car apart because of the dog's help (and then they don't permanently impound your car for being involved with a drug bust.)

However, I don't see how it can be beneficial for anyone to argue that the use of scent-detecting dogs is not a search, or how it can even be doubted when and if the dog does uncover something substantive in a search. And if the dog "finds" something as a false positive... they then tear your car apart, and nothing of use to the authorities (nothing incriminating anyway) is found, then ...

Well, your argument holds water, but now your property's actually been destroyed, and you still got searched.

Re:Last Sentence

[muridae]

I read it yet another way, as "providing the password would imply that he knew the encrypted data was there to begin with".

How many viruses now days encrypt stored spaces to hide warez and other crap from antiviruses? How do the cops know that the guy didn't let a friend use the computer and the friend put the data there. If all the cops know is 'there is something encrypted it', legally it seems like them demanding this guy opens it without proving it belongs to him. Cops find a safe, they think there may be proof of a crime inside, and demand that CivilianX opens it or faces contempt charges. . . with no proof that CivilianX is involved. Same legal grounds, it seems, according to this judge.

Re: Last Sentence

[forkazoo]

The way the system is set up, the government has to know something exists to be able to askfor it. It may sound slightly silly at first blush, but it's actually quite important. Imagine that a drug dealer is being prosecuted. They have sworn testimony that "yes, that hard drive has a list of drug suppliers called drugsuppliers.doc." from an employee. Failing to share the file is withholding evidence that the government knows exists. On the orher hand, if cops start going door to door to check everybody's computer for anything bad, they don't know what they are looking for. Forcing you to grant access 'just in case' would be a horrible violation. In this case, the judge is saying that the prosecution is just on a fishing trip. There might not even be anything specific to the case on that drive. There might be incredibly horrible evidence that makes this case even bigger. But in any case, the government needs some evidence ro start dismantling a person's life. They can't do it just on the possibility that they may potentially find some evidence.

Re:Last Sentence

[muridae]

Keys to the safe. It's been a long history of rulings saying that if the cops know or have reason to believe you put something in a safe, and they have reason the believe that those documents are valid to the case at hand, they can compel you to open it with a warrant. Your diary and handwritten notes are not protected from a search if they are sitting on your desk, and they are not protected if the cops have reason to believe that you put them in a safe either.

Difference in this case appears to be that the cops only know that there is encrypted data, but they can't provide reasonable evidence that the defendant put it there.

Re:Last Sentence

[steelfood]

No, I think some of the other people got it right. What all this means is that the 5th amendment applies if law enforcement does not know a priori that some important piece of evidence is encrypted.

If they have a priori knowledge, they can ask for the keys and it has to be provided. But if they're only asking for the keys to find out if there's evidence, then the 5th amendment applies and it doesn't have to be provided.

Either way, it's a good idea to not cave during the initial questioning and let the courts determine if the 5th amendment applies to your case or not. Granted, it's probably always a good idea to not cave during the initial questioning...

Re:Last Sentence

[kwark]

This would be either a legal order or a threat (illegal order). Compel is ambiguous, it can mean urge or force.
But this made me think about data on my laptop. I'll either put in an other hdd without any personal data on it(*) or leave the key at home next time I'm traveling outside the Schengen area.

*: still deciding whether to risk putting a dm-crypt at a "random" offset in a seemingly empty fat partition (that has been randomized before),

Re:Last Sentence

[muridae]

Wrong. The government can force you to turn over the 'key to the safe'. They know you have a safe, they know you store stuff in it, they have reason the believe it's relevant to the case at hand, they get search warrant and you either unlock it or face contempt. As long as they know it's your safe, they can compel you to open it. They can compel you to open your filing cabinet, or diary too. Just because you wrote it doesn't make it safe under the 5th.

Re:Last Sentence

[chuckugly]

*If you can*. There is no penalty (except a broken safe) for not knowing the combination to the safe.

Re:Last Sentence

[Artifakt]

There's no evidence that another person exists who has both the encription key and physical access to the drives, but how hard would it usually be for the accused to make that claim? What's stopping the accused from saying 'Bob Jones' had the drive in his possession for a time and must be the person who encripted the drive? At that point, a grand jury or court could end up with an original accused person, with pretty limited evidence against him, and a new suspect, with not much less evidence against him. And, this could go on, with Bob Jones claiming Alice Smith had a chance to access the drive, and so on.

Re:Last Sentence

[adamstew]

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 don't think it's a 4th amendment issue. If you are already in the discovery phase of a trial, you are well beyond probable cause for a warrant. The prosecutor would simply go "we need to search in the safe to see if there is any incriminating evidence." If you've already made it to trial, then there probably is probable cause that incriminating evidence could be in any of your belongings. Even if the computer was shared, if it's something that the defendant used, then the prosecutors should have no problem getting a warrant to search it.

I think the issue the Judge raised in this particular instance is that the government hasn't proven that the defendant is even ABLE to provide the encryption keys. If you say to the judge, under oath, "I don't have access to the encryption keys" or "I am unable to remember the pass phrase" then, unless there is evidence to the contrary that the prosecution can produce, the judge has to take your word for it.

The judge simply can't throw you in jail indefinitely in contempt of court for failing to do something that you are actually unable to do. Now it's up to the prosecution to prove to the judge (beyond a reasonable doubt) that you should know the encryption key or did possess the key and then later destroyed it. The prosecutor will have to find evidence that he knows, or should know, the encryption key. If he can do that, then the judge will then have the ability to find the defendant in contempt for not providing the encryption key and hold him indefinitely until he provides the key, or if the key was destroyed then charge you with obstruction of justice.

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?

If I were a judge, I could resolve that pretty easily...The prosecutor is allowed to use anything they find within the encrypted device/archive as evidence, but the fact that your pass phrase for the device was "I, adamstew, admit to killing Mr. John Doe on Feb 28, 2067". The jury would simply see the evidence that was found on the encrypted device, but the actual content of the pass phrase would be kept from the Jury and deemed inadmissible.

Disclaimer: I am not a lawyer. I just watched a lot of Law and Order. I am just pretending to be a lawyer on the internet. Take everything I say with a grain of salt.

Re:Last Sentence

[stanlyb]

That's way, your first line of defense is to request all the "known" information that the government has. After that, it is a poker game.

Re:Last Sentence

[tattood]

But you can't be compelled to provide evidence against yourself that the government doesn't know you have.

What if the drive contains the evidence that they know you have, but it also contains other evidence that they do NOT know you have, which one would have precedence? If decrypting the drive will give them access to other evidence that would incriminate you in another crime.

Re:Last Sentence

[Hatta]

If the government already knows about the evidence, they don't need me to provide it.

Re:Last Sentence

[GameboyRMH]

Go for it! I have many drives with encryption that's illegal in some countries, whole partitions just sitting there plain as day.

There's a decent chance your hidden partition wouldn't be found, and if it is you just act like you know nothing about it. It's a regular empty FAT partition.

Re:Last Sentence

[TheCarp]

No no, my point is its not a search because it doesn't indicate anything that the officer didn't already know. As such, it should be said not only to not be a search, but also not probable cause.

Try it this way.... if a police officer thought you had drugs, and you refused a search. Now, the officer goes back to his car, pulls out a dowsing rod, and starts walking around your car. The dowsing rod points down at your trunk.

Was that a search? I would submit this mode of using dogs (which is different from situations where there is no existing bias in the handler) is no different from a dowsing rod, because it isn't a test for drugs, or explosives, its a test for bias in the officer.

Thing is, we know he thought there were drugs, thats why he got out the dog or dowsing rod. So no new information has been gained.

Re:Last Sentence

[Jane Q. Public]

"The argument I've heard is that, when information is at rest, it's not considered testimony for the information to be read (but some other form of discovery). Therefore if it can be shown that you're in a position to decrypt the drive, and the drive is admitted in discovery and you refuse to facilitate discovery, you are standing in the way of the discovery and can be held in contempt of court."

If it has not been shown that the drive can be decrypted with information you have, or could reasonably be expected to have (say, it can be shown by inductive reasoning that the drive contains the log of your activities), or if for example the ownership of the keys or the drive and the encrypted data is in question, it's not reasonable to compel you to decrypt it under penalty of contempt. It hasn't even been shown that it's in your power to facilitate the discovery.

You can be similarly compelled to provide paper documentation, even if it was sent through the mail. It's not testimony. It's facilitating (or obstructing) discovery.

This is COMPLETELY off the mark. Here's how it actually works. (I should add that there have been several other cases about this point recently, and none of them ruled that it was "a close call", as this judge seems to think.)

If the government does not know that there is illegal material, or evidence of illegality, in the encrypted material, it cannot compel you to give up the password because that would be testifying against yourself.

There are a couple of essential points here: first, it has to be "a product of your mind". Something you know. Not some kind of item that they know exists. For example, in many circumstances you can be compelled to turn over a key to a locked door, because a key is not testimony. (Other matters surrounding a search of a locked room are beyond the scope of this post.)

The second essential point is that the government has to KNOW there is something illegal in the encrypted data in order to compel you to give them the password. Not "reasonable suspicion" as OP states. It has to be known beyond reasonable doubt. Because -- and this is the big point -- if they already know it's there, then you aren't incriminating yourself... you have already been "incriminated". You aren't admitting to anything because the illegal material is already known to exist. So, since you can't be said to be incriminating yourself, they can compel you to give up the password.

So let me give you some examples from other recent court cases like this one:

Someone was suspected of fraud but the evidence was all encrypted. The government could not prove the fraud without that evidence, which they had good reason to believe ("reasonable suspicion" as OP described it) that the evidence was in that encrypted data. But because of that, the government could not compel the defendant to give them the password, because there was a real danger he would be incriminating himself, which the 5th Amendment says you can't compel.

In another case, a man was crossing the border with a laptop. At the time, customs was allowed to search at will. (A Federal court recently ruled that government needs probable cause to search even at borders. But at the time, it was considered kosher.)

The man's laptop was turned on but asleep. His encryption software was running, so an encrypted volume on his hard drive could be accessed. 2 customs agents saw child pornography in the encrypted part of the drive, before the man somehow managed to turn the computer off. When it was turned back on, of course the encrypted data was no longer accessible.

In this case, it was ruled that the government could compel him to produce the password, because the government already knew there was illegal material there. He could not be said to be incriminating himself, because they already knew it was illegal. The testimony of 2 customs agent was acceptable "k

Re:Last Sentence

[TheCarp]

> how it can even be doubted when and if the dog does uncover something substantive in a search.

Oh I didn't address this.... never forget there are multiple parts to a trial. If the use of a dog is considered improper, and not something which gives probable cause. Look at the study there, only a small fraction of searches found nothing, even though none of the searches had anything to find.

That is how its doubted. Its not about whether or not there were drugs, its about whether the method to detect them is reliable. In this case, its not reliable and is expected to get false positives at a high rate. Where is the probable cause there?

So showing this should....SHOULD (not saying that any court has ruled this way...yet) be enough reason to toss out any evidence found from the subsequent search. Assuming that is all the evidence (like you didn't then confess), then that is all decided before the jury even gets shown the evidence.

This is, of course, what is supposed to prevent the police from doing things like that... because it invalidates evidence. Imagine if they found the bodies of 6 kids in your trunk but then could find no other evidence pointing to you in their murders? That evidence gets tossed out if the search is invalidated.... nobody wants to be the cop who fucked that up.

On the other hand, most people confess easily and talk before ever getting a lawyer....so it seldom comes into play.

Re:Last Sentence

[Jane Q. Public]

"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."

Not even.

In 5th Amendment cases, "reason to believe" is not good enough. Even probable cause is not good enough. They have to KNOW, already, that there is something illegal in there (and exactly what it is) before they can compel a password or a combination. See my explanation elsewhere in this thread.

If they don't already know it's there, beyond reasonable doubt, they can't compel you. Because then you would be incriminating yourself.

However, what they CAN do, if they have probable cause and it's something like a safe, is force it open. (If we assume they physically can. There are few things that can't be forced open given time and money.) If they force it open, there is no 5th Amendment question.

"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?"

Because of what I just explained, that could never happen. If they already know that there is something illegal there, then they can compel you to divulge the password or combination. But if they DON'T already know, they can't compel you to divulge because the act of doing that would be incriminating yourself.

Re:Last Sentence

[femtobyte]

Your analysis is off-the-mark for this particular case. According to the judge's writeup linked in the summary, the prosecution in this case actually did have evidence that child porn files were being downloaded to the servers and saved to the encrypted disks. The reason that the defendant was granted 5th Amendment immunity is that the prosecution lacked evidence that he was the only person in control of the computers. Maybe someone else had broken in and set up the encryption without the defendant's knowledge? By turning over the encryption keys, the defendant would prove that he knew the encryption keys, and thus incriminate himself of being responsible for the porn-filled encrypted disks (instead of an unwitting victim of hacking).

Re:Last Sentence

[TheoMurpse]

It's not really that. It's that you have a right not to be forced to incriminate yourself, and if you are forced to turn over encryption keys to something, you are admitting that the media is yours. If there's something illegal on the drive, this would be self-incrimination (admitting "this illegal stuff is mine").

I remember this being a hot issue when I took Evidence in law school years ago. Of course, it being law school, we really didn't talk about anything useful. ;)

Re:Last Sentence

[deadweight]

I actually do know someone who bought a computer loaded with kiddie porn. It was - thankfully - blamed on the original owner. Went like so: Neighbor 1 - my computer got stolen :( Neighbor 2 - That sucks, did you call the cops? 1 - No 2 - ???? Neighbor 3 - Hey, I bought this computer from Crackhead Bill (known thief) and it has all kiddie porn! Ugh! I'm calling the cops!

Re:Last Sentence

[jthill]

To convict him of this crime, the government has to satisfy a jury beyond reasonable doubt that (roughly) he has it, he knows he has it, he went and got it, and (unless it's been ruled a "strict liability" crime, I dunno) that he knows it's wrong. He is not obligated to tell them that any part of this is true. Suppose the files, instead of being encrypted on his hard drive, were just sealed in his safe deposit box. The government could compel production because they don't have to prove he can get them. Suppose it were someone else's safe deposit box? Then they'd have to prove he has access to it. That's what they have to prove here: he has access. He's not obligated to tell them he does.

Re:Last Sentence

[Raenex]

by not providing the combination you are standing in the way of the court to evaluate the evidence

Bold mine. No, you are not standing in the way. You just refuse to help. They could search for the key to their heart's content, or if it was a physical safe, break it open.

Re:Last Sentence

[jader3rd]

What if the drive contains the evidence that they know you have, but it also contains other evidence that they do NOT know you have, which one would have precedence? If decrypting the drive will give them access to other evidence that would incriminate you in another crime.

I suspect that it work just like a warrant. When the cops get a warrant for searching a property, it's scoped to specific evidence. If they find something which is out of scope, they can't collect it as evidence.

Re:Last Sentence

[Jane Q. Public]

"Keys to the safe. It's been a long history of rulings saying that if the cops know or have reason to believe you put something in a safe, and they have reason the believe that those documents are valid to the case at hand, they can compel you to open it with a warrant. Your diary and handwritten notes are not protected from a search if they are sitting on your desk, and they are not protected if the cops have reason to believe that you put them in a safe either.

Difference in this case appears to be that the cops only know that there is encrypted data, but they can't provide reasonable evidence that the defendant put it there."

There are a couple of ways here that you are subtly wrong. You are closer than most other people here though.

First, there is a legally important difference between a key and a combination. The first is a physical thing, and the second is knowledge. Why that is important is that knowledge can become testimony. A key is not.

But the main things that most people get confused about here are "suspicion" (or reason to believe), "probable cause", and "knowledge".

Anybody can have suspicions about anything. Suspicion is an extremely weak legal argument. The authorities can do very little on suspicion alone.

Probable cause is a stronger legal argument. They can search a safe and even force it open if they have probable cause. And even demand a key.

The 5th Amendment is stronger than either one. It covers your thoughts and words. They have to have a very, very strong case indeed -- far stronger than just probable cause -- before then can compel you to give up passwords. But... if they can force open the safe, or brute-force the encryption, they still only need a warrant. Then no 5th Amendment question comes up.

Re:Last Sentence

[Jane Q. Public]

I meant to add: probable cause has to be based on evidence, whereas suspicion does not. That's the main reason probable cause is a stronger legal argument than suspicion.

Re:Last Sentence

[nospam007]

"However, what they CAN do, if they have probable cause and it's something like a safe, is force it open. "

They can break any encryption as well as a safe. They are just unwilling to wait that long.

As usual: Don't talk to the police, ever!

Re:Last Sentence

[dcollins]

That's nice, but in February the Supreme Court explicitly ruled about dog searches, "tough shit, the searches are legally admissible, we believe cops more than we believe you".

http://reason.com/blog/2013/02/19/scotus-approves-search-warrants-issued-b

Re:Last Sentence

[Yebyen]

I think that in this case the condition is that the judge does not see compelling evidence that the data and keys belong to the defendant. That way he cannot be seen as obstructing discovery, since "anyone" could be the owner of that data, and there's onus on the prosecution to prove that defendant is the keeper. It's not that he's refusing to help. It's that we have no proof that he is in any position to help.

If I misread the summary and comments (haha articles) then feel free to correct me. If it was a bank ledger, you could not claim to the IRS it was confidential data protected by fifth amendment rights, and thus excluded from discovery. It's these encryption keys that you put in the way, and if you don't produce them, and there's compelling evidence that it should be in your power (or that if it's not, then you must have destroyed the keys to prevent access, at the time knowing that it was admissible evidence you were destroying), then you will be held in contempt of court.

Re:Last Sentence

[femtobyte]

They can, however, use it as probable cause to get a second warrant to collect the new evidence. If police bust into your house with a warrant to search the kitchen for marijuana, and notice you have polaroids of a recent unsolved murder victim taped to the fridge, then they don't have to say "oops, we didn't see that." They can't take the photos or go rooting around the house for other evidence related to the murder on the existing warrant, but they can go back to a judge and request a new warrant (based on probable cause from testimony about seeing the photos) with different scope.

In the article's court case, the defendant was allowed to refuse to disclose a password not because the contents of the drive could be incriminating, but because disclosing the password itself reveals previously unknown information: that you know the password. If the court already considers it a proven fact that you know a password, and has a warrant for searching the drive, then you don't get 5th-ammendment protection against revealing the password, no matter what incriminating stuff could be on the drive. The 5th Amendment is typically interpreted to only cover the "contents of your head": you can't be required to provide potentially self-incriminating info about were on the night of November 3rd from the contents of your memory. Your appointments calendar in your desk safe, however, is not 5th-ammendment protected, so you might be required to hand over that combination.

Re:Last Sentence

[Jane Q. Public]

"Your analysis is off-the-mark for this particular case. According to the judge's writeup linked in the summary, the prosecution in this case actually did have evidence that child porn files were being downloaded to the servers and saved to the encrypted disks."

No, it's not off the mark, because they didn't KNOW it was on those disks.

Just as OP quoted the court: "... tantamount to telling the government something it does not already know with 'reasonably particularity'".

They did not KNOW that with reasonable particularity. As I just got done explaining in some detail.

Re:Last Sentence

[Jane Q. Public]

In other words: giving up the password would be "admission" that he had control over those drives. That is something the government did not already know. So while it was the password itself, and not the actual content, the exact same analysis applies.

If they already knew "with reasonable particularity" that he had access to those drives, then they could have compelled him to produce the password, because he could not incriminate himself. So the analysis does not change even a little.

Re:Last Sentence

[Jane Q. Public]

"They can break any encryption as well as a safe. They are just unwilling to wait that long."

Yes, they could try to break the encryption using pretty much any (non-destructive) means available to them. In some cases they have tried that, and I believe in at least a few they succeeded.

Re:Last Sentence

[femtobyte]

Read The Effing Ruling:

“In short, the government already knows the names of the files (which indicate child pornography) and their probable existence on the encrypted hard drives. Under these facts, “[t]he existence and location of the [files] are a foregone conclusion.”

The thing "not known with reasonable particularity" was not whether illegal files were on the disks, but whether the defendant could access the disks himself:

But the following question remains: Is it reasonably clear, in the absence of compelled decryption,7 that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein?

Re:Last Sentence

[femtobyte]

Also, from the ruling:

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.

You clearly have poor reading comprehension; don't go spouting off in your ignorance to confuse others.

Re:Last Sentence

[femtobyte]

Right, I agree with you here. Your post above was "off the mark" because all your discussion and examples related to questions not relevant to this case. Your "examples from other recent court cases like this one" were *not* like this one: they reached different decisions based on different situations. You were worried about whether or not revealing the contents *on* one's drives would be self-incriminating; the key technical distinction that drove this case decision was whether *knowing a password* was self-incriminating. Your examples and discussion only distract from, rather than clarify, the principles needed to understand this particular ruling (hence "off the mark").

Re:Last Sentence

[Jane Q. Public]

"Read The Effing Ruling:"

WHOOSH! much?

The only difference here is that it was the password itself, not the contents of the files, that were not "known with reasonable particularity".

Other than that, THE LEGAL REASONING IS IDENTICAL. It isn't the particular thing that isn't known, it's whether criminality is already known, that is the important factor.

As I explained to someone elsewhere on this page, before your reply to me, this exact scenario is still covered by the same logic.

Re:Last Sentence

[Jane Q. Public]

"our "examples from other recent court cases like this one" were *not* like this one: they reached different decisions based on different situations. "

Okay, here is where the misunderstanding lies. Maybe I could have explained it more clearly. My reply just above was a bit snide, but I thought you weren't getting it.

The important thing is not what particular thing this is about, the contents of the drive or the password itself. What is important is whether the court already knows whether the person is criminally involved. Because if the court already knows that, he can't "incriminate" himself. I.e., he isn't admitting that he's a criminal, it's already known.

That's what it hinges on. I probably could have explained it better. But the examples I gave are still examples of the same thing. The same reasoning applies with those: in the first case, the guy would have been incriminating himself (admitting to the court that he was a criminal) by letting the court access those files. In this case, the guy would have been incriminating himself if he gave up the password... again because the court did not know, ahead of time, that he was a criminal. And in my other example, it was already known with reasonable certainty (and with "reasonable particularity") that he was a criminal. So he could not incriminate himself.

Re:Last Sentence

[lgw]

Compel is ambiguous, it can mean urge or force.

No, in English "compel" is force, not urge: http://dictionary.reference.com/browse/compel

Re:Last Sentence

[Raenex]

If it was a bank ledger, you could not claim to the IRS it was confidential data protected by fifth amendment rights, and thus excluded from discovery.

I see very little difference between being forced to actively hand over all incriminating documents pertaining to a matter and being compelled to be a witness against myself. The point of search warrants are to obtain evidence that a suspect would naturally not want to provide. Compulsion beyond that is arguably a fifth amendment violation.

Re:Last Sentence

[virg_mattes]

If the government already knows about the evidence, they don't need me to provide it.

The issue arises when the officials know about the evidence but they don't have direct access. For example, you keep a set of books for illegal activities. An undercover agent saw the books when you were interacting with someone but didn't get a look at the whole book. That's an example where they can compel you to produce the books even though they don't know what's in the books. Or, an officer pursues you into your house, and sees you throw something in a wall safe and lock it. You can be compelled to open the safe in that case. But, for example, if that same thing happens but you went into someone else's house, tossed it in their safe and locked it, you could make a reasonable argument that you can no longer assist in discovery because you don't know the combination to a safe you don't own, and in that case you can't be compelled under contempt to provide the combination to that safe.

In the case at hand, the prosecutors couldn't prove that he actually had access to the decryption key for the device and having that key would implicate him, so they can't hold him in contempt if he says he's unable to provide it.

Virg

Re:Last Sentence

[femtobyte]

The same reasoning applies with those: in the first case, the guy would have been incriminating himself (admitting to the court that he was a criminal) by letting the court access those files.

It's a subtle distinction (law gets subtle!), but "incriminating yourself by letting the court access files" is not the same as "incriminating yourself by showing you can access files." The latter has been ruled to fall under 5th Amendment protections. The former is still a legally open question (the courts might not agree to consider it "incriminating yourself," and instead consider it "handing over a safe key to cooperate with evidence gathering").

Assuming your first case is this one (referenced in the the Wikipedia on 5th Amendment), it's important to note that, as in the article case, one of the important factors in not requiring a password be handed over was that "Neither do they know that Doe is capable of accessing the files." There may be instances where the court will require a password to be handed over to decrypt a not-known-to-be-incriminating file --- so far as I know, the courts haven't entirely ruled that out. Specifically, if the court "knows" (according to sufficient standards of evidence) that someone does have a password for a disk potentially containing (incriminating) evidence, then they may be able to demand the password --- again, this is a case yet to be hashed out (so far as I know) in court.

Re:Last Sentence

[JakeBurn]

In the USA at least, if the police have a legal reason to enter your home, (even including you allowing them in through the front door for any reason), they can then seize anything they can see that is also known to be illegal from any vantage point they have that is legal. Standing outside your window and looking in is not a legal vantage point, but you opening the front door would create one at the entryway just as the warrant makes your entire kitchen one. If they respond to a noise complaint, which doesn't even require a warrant, then see a bag of weed on the table when you open the door, they absolutely can enter your home, seize the drugs and arrest you. Its called Plain View Doctrine and its irrelevant to the warrant in as far as the photo in your post is concerned. It definitely could result in a more inclusive warrant being issued to search for more evidence concerning the murder, but that still wouldn't negate the fact that the original warrant would allow them to seize the photo on the fridge, a gun with the serial number filed off or anything else illegal that is in plain view, or in any place they expected to find the marijuana they came for in your kitchen.

Re:Last Sentence

[femtobyte]

I was careful in my example with a photo, because a photo isn't something illegal. Maybe you were hanging out with the victim before they got killed by someone else? A bag of weed or a gun with the serial filed off are indeed illegal things, that the cops can seize "from plain view." A photo is (usually) a perfectly legal thing, that police probably can't seize without a specific warrant. However, they've likely got probable cause to detain you on the spot and assure you can't destroy the photos/evidence while they're requesting a new warrant.

Re:Last Sentence

[flaming error]

Nice clear answer, thanks.

But just because the cops could get a warrant doesn't mean the suspect really has their evidence.

They can "compel" Professor Plum to produce the candlestick, but if he can't, he can't. And if he can, he's probably sealed his own fate.

So I'm with GP - I don't see how compelling one to provide evidence against herself is anything but compelling self-incriminating testimony. If the cops can't crack the password, their evidence that she had the password should be all they can produce at trial.

Re:Last Sentence

[MaskedSlacker]

Bank statements or other accounting records would be the canonical case.

The government can compel you to provide those records if they know you have an account which would have such records. They can't compel you to tell them what accounts you have.

Re:Last Sentence

[khallow]

The same holds for any other property. There are certain circumstances under which a police officer can legally search your property, not necessarily requiring a warrant.

I think a good car analogy here is that the police suspect someone of having stolen a car. They can't compel that person to provide the keys to that car (and hence, incriminate themselves in the process) due to the Fifth Amendment. But if the police could demonstrate that there was a reasonable suspicion that the person had the keys at one time, they could compel the person to disclose what became of them.

Re:Last Sentence

[fafalone]

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.

Really? It's pretty clear to me. It's just another technical loophole to allow cops to do anything they want to catch [druggies|terrorists|pedophiles]. Or do you really think the Supreme Court says dogs are ok- if the police say they passed a police-administered certification with no real ability to challenge the methods or conduct independent tests, or even know the dogs actual field record (all you can do is ask the dogs handler if his dog is certified, and they can just say they can't talk about field records, and of course they don't have to prove the dog to an independent expert with sound methods)- because they're too dumb to know dogs fail more often than not? Read the decision for Florida v. Harris; it's a complete farce, how they ignored real evidence in favor of 'well the cops say the dog is good'.

I mean seriously, here's how the argument went:
a) Independent testing shows the dog clearly responds to the handlers wishes, both in test courses and the field. In these tests the handler did not know where the drugs were.
b) Police say in their testing with their methods the dog is very accurate. The handlers know where the drugs are in each test. And the field results don't matter, because the dog is so right if drugs arent there now they obviously just moved them.

Supreme Court says (b) is now the law of the land, and sound legal grounds to justify probable cause under the 4th amendment.

Re:Last Sentence

[Quantos]

They can't compel me to do a damned thing. They can send me to prison until I give them the key. But that certainly won't win my co-operation with them. Have you ever heard the phrase 'Go to Hell'.

Re:Last Sentence

[tqk]

If the government already knows about the evidence, they don't need me to provide it.

The government is prosecuting. They need to convince a judge. You're stopping them from doing that every second you stonewall. Don't you feel evil now? You're obstructing justice. If the judge believes them and you continue on this course, you'll be in contempt of court. They can lock you up and throw away the key for that. Have a nice life.

*FUCK*, the USA's justice system is perverted these days. Do any of you even bother to distinguish between good and evil, right and wrong, moral and immoral anymore?

Re:Last Sentence

[MaskedSlacker]

As I explained to someone elsewhere on this page, before your reply to me, this exact scenario is still covered by the same logic.

While you did it explain it to them, you did a rather crappy job of explaining how the two scenarios are equivalent. You explained the first scenario (how they need to know the data exists), but did a crappy job of explaining how the same argument applies to second (how they need to know that he has the key).

Re:Last Sentence

[MaskedSlacker]

Never mind warrants, they used to convict people based on bullet alloy analysis which has ZERO validity. Dogs are at least good sometimes and sound in theory. Bullet alloy analysis was NEVER valid, and was used to justify executing people. http://www.washingtonpost.com/wp-dyn/content/article/2007/11/17/AR2007111701681.html

Re:Last Sentence

[Bobfrankly1]

... If they respond to a noise complaint, which doesn't even require a warrant, then see a bag of weed on the table when you open the door, they absolutely can enter your home, seize the drugs and arrest you. ...

Which is why it is often a good idea to open the door as narrowly as possible, step out, and close the door behind you when dealing with the police. I've seen lawyers (in real life, not CSI) do this same thing, not that they had anything to hide, but they know how to deal with the police. If the police looking for a reason to get in, for whatever motive, taking away their viewpoint can limit their ability to do so legally.

Re:Last Sentence

[SLi]

I suspect that it work just like a warrant. When the cops get a warrant for searching a property, it's scoped to specific evidence. If they find something which is out of scope, they can't collect it as evidence.

No. If they stumble on something which is out of scope without specifically looking for it, it can be used. Google for "plain view doctrine".

Re:Last Sentence

[Hatta]

An undercover agent saw the books when you were interacting with someone but didn't get a look at the whole book.

In which case the undercover agent should testify that he saw me with the book. That's all they know, that's all they get.

That's an example where they can compel you to produce the books even though they don't know what's in the books.

*can* in the sense that it is possible, not in the sense that it is permissible.

Or, an officer pursues you into your house, and sees you throw something in a wall safe and lock it. You can be compelled to open the safe in that case.

If it's a combination lock, then producing the combination is an act of testimony. If there is incriminating data that act of testimony is incriminating. We are protected against giving incriminating testimony by the 5th amendment.

It's that simple. If you don't want to be protected by the 5th amendment anymore, you should work on repealing it. It's not OK to simply invent exceptions because the 5th amendment is inconvenient.

Re:Last Sentence

[X0563511]

Oops, the stress of your false claim that I posses child pornography made me forget the key.

Re:Last Sentence

[Yebyen]

There is a warrant. It's in discovery. We are beyond warrants. The court has already subpoena'ed the data, so there's no "show me your warrant" defense. The only defense that's available is "the data does not belong to me / it was never in my control." Which is a viable defense in many cases also thanks to the mechanics of public key cryptography, even if prosecution shows that you created the data, you can be under contract to destroy it once it's encrypted and submitted, if the data does not rightfully belong to you.

Maybe I'm not completely clear on the context of the article. It doesn't even seem like a 4th amendment issue when you explain it that way. More like "don't do what donny don't do" -- how can you speak if you have no mouth?

Re:Last Sentence

[Raenex]

The court has already subpoena'ed the data, so there's no "show me your warrant" defense.

I understand your position, and the legal justification, but I don't believe you should be compelled to provide information, whether in your mind or in your paperwork, as part of discovery if it incriminates you. That's what search warrants are for. Also, going back to my original post, I object to not providing documents or keys as being framed as "standing in the way".

It doesn't even seem like a 4th amendment issue when you explain it that way.

We're talking about the 5th and limits on incriminating yourself. I brought up search warrants to show that they are used to get information that the 5th protects.

Re:Last Sentence

[Jane Q. Public]

"It's a subtle distinction (law gets subtle!), but "incriminating yourself by letting the court access files" is not the same as "incriminating yourself by showing you can access files." The latter has been ruled to fall under 5th Amendment protections. The former is still a legally open question (the courts might not agree to consider it "incriminating yourself," and instead consider it "handing over a safe key to cooperate with evidence gathering")."

Okay, I am done here. You still aren't getting it.

It isn't the material to be disclosed that is the deciding issue. It's whether divulging that information would cause the defendent to incriminate himself. The legal analysis is exactly the same.

And the former is NOT "still a legally open question". There was a solid ruling on this in Federal court just a few months ago. As if there needed to be... it has been decided before in exactly the same way.

Re:Last Sentence

[Jane Q. Public]

See my other reply from this morning. It isn't me who is lacking understanding here. I already explained this to you, but apparently it went right over your head.

My first explanations might not have been very clear. But I have clarified in my further discussion with you. But that clarification seems to have gone right over your head. As such, I retract my earlier apology, and will simply say again: WHOOOSH!

Re:Last Sentence

[Jane Q. Public]

As I stated myself in another reply, I now recognize this. But thanks for trying to clarify.

Re:Last Sentence

[Yebyen]

OK. Again, after all of this discussion I'm not even sure I agree with the original argument of the judge now. Why should it be a 5th amendment defense when they're not sure you even have the keys to decrypt? I've gone back and read the decision, they have supposed that the drives' encryption tech is "of the sort" that would destroy the information inside if too many failed password attempts are made.

Yes, it would be incriminating if you provided the keys and they found damning evidence against you. Perhaps moreso than if you didn't provide keys, and they still did find them another way that didn't trace back to you. It just seems like shoehorning the 5th amendment in there. "I don't have the keys." "Give us the keys." "I don't have them, but if I did, I would plead the fifth."

NOW THEREFORE IT IS ORDERED that the government’s “Application Under the All Writs Act Requiring Jeffrey Feldman to Assist in the Execution of Previously-Issued Search Warrant” be and hereby is DENIED.

From the last paragraph of the decision, and I am not a lawyer, it sure sounds like he is standing in the way, but the judge is going to allow him to do it because of 5th amendment. They have evidence of what is on the drives, or what should be on the drives, seeing as it was logged as transferred into the mapping that the drives were found connected to, and not found on any of the unencrypted drives. But they don't have an admission that he has the keys and he maintains control over the drives.

That's pretty sloppy. It kind of sounds like the 'mistake' on someone else's computer before you call the cops, if you want it to be found, in order to get them thrown in jail for 30 years. I wonder if they really need this evidence to convict the guy, or if they will do it some other way.

Re:Last Sentence

[RoknrolZombie]

In the USA at least, if the police have a legal reason to enter your home, (even including you allowing them in through the front door for any reason), they can then seize anything they can see that is also known to be illegal from any vantage point they have that is legal. Standing outside your window and looking in is not a legal vantage point, but you opening the front door would create one at the entryway just as the warrant makes your entire kitchen one. If they respond to a noise complaint, which doesn't even require a warrant, then see a bag of weed on the table when you open the door, they absolutely can enter your home, seize the drugs and arrest you. Its called Plain View Doctrine and its irrelevant to the warrant in as far as the photo in your post is concerned. It definitely could result in a more inclusive warrant being issued to search for more evidence concerning the murder, but that still wouldn't negate the fact that the original warrant would allow them to seize the photo on the fridge, a gun with the serial number filed off or anything else illegal that is in plain view, or in any place they expected to find the marijuana they came for in your kitchen.

Not *entirely* accurate... From https://ssd.eff.org/your-computer/govt/warrantless

Plain view. The police can make a warrantless search or seizure if they are lawfully in a position to see and access the evidence, so long as that evidence is obviously incriminating. For example, if the police enter a house with a valid search warrant to search for and seize some stolen electronics and then see a bag of drugs in plain view on the coffee table, they can seize the drugs too, even though the warrant didn't specifically authorize that seizure. Similarly, the police could seize the drugs without a warrant, or look at any other documents or things left in plain view in the house, if there were exigent circumstances that led the police into the house — for example, if a suspect they were chasing ran into the house, or if they heard gunshots from inside. Even a law-abiding citizen who does not have any contraband or evidence that the police would want to seize may still have sensitive documents in plain view that one would not want the authorities to see.

The plain view exception alone does not allow the police to enter your home or office without a warrant. So, for example, even if the police see evidence through your window, they cannot enter and seize it. However, plain view can combine with other exceptions to allow searches that might otherwise require a warrant. For example, if the person with the bag of drugs in the previous example saw the police looking through his window, then grabbed the bag and ran towards the bathroom as if he was about to flush the evidence down the toilet, that would be an exigent circumstance and the police could enter without a warrant to stop him.

Re:Last Sentence

[RoknrolZombie]

*FUCK*, the USA's justice system is perverted these days. Do any of you even bother to distinguish between good and evil, right and wrong, moral and immoral anymore?

Not in any discernible way, no.

Re:Last Sentence

[Raenex]

NOW THEREFORE IT IS ORDERED that the governmentâ(TM)s âoeApplication Under the All Writs Act Requiring Jeffrey Feldman to Assist in the Execution of Previously-Issued Search Warrantâ be and hereby is DENIED.

And just to get back to my original point, what they are asking him to do is assist in their search. He is not "standing in the way", a biased way of phrasing the argument.

Re:Last Sentence

[Yebyen]

Yes, to say that he is standing in the way is to assume that a) he's the one who encrypted the drive, and b) that he _can_ assist. I think I get it now. Thanks!

Re:Last Sentence

[Raenex]

I think I get it now. Thanks!

Not quite, because I'm saying even if they knew for a fact that he could assist and it was he who encrypted the drive, it is still misleading to say he is "standing in he way". If he had a gun and was protecting it, then yes. But he hasn't denied them the ability to conduct their search. This is my opinion regardless of whatever the legal position is.

Re:Last Sentence

[Raenex]

Why should it be a 5th amendment defense when they're not sure you even have the keys to decrypt?

Because providing the keys is equivalent to answering the question: "Do you have privileged access to encrypted files on this device?" Based on the 5th, he does not have to answer that question either in the positive or negative.

Re:Last Sentence

[Yebyen]

Ohh, I just wrote another great reply and destroyed it by pressing Ctrl+Arrow thinking it would bring me to the left of the text entry.

Oh well. To summarize, I think it's more important that we don't have 3) strong evidence that he was the only one in control of the drive, or that he actually knows what's on the drive and has the keys in his possession, and 4) a statement incriminating him, where he states information to the effect that there is evidence on the drive and it's incriminating.

Even when (4), if I was his defense I would continue to argue 5th amendment protection and probably refuse to release the keys ("I Can't"), since the statement could be out of context or false, the statement is not under oath, or proof of anything, and it is not enough to convict alone.

In that case only, he's probably at least in contempt of court.

If it can be shown that he has the keys, I would disagree with your opinion that he's not standing in the way. Even if there are other gatekeepers, and he can't claim sole ownership of the data on the drives (say for defensive purposes, somehow knowing that nobody else could have gained access, or that he has never granted access to help let anyone frame him up good; even as the designer of a well-known ERP system I would not take that bet) he has the power to assist.

Not knowing what's on the drives or if the key had been compromised, based on the rest of the information I would refuse to give up the keys too. What if there's child porn? (Based on the description of the file sharing program logs, I would guess they would find plenty. "I didn't put it there, but based on what you tell me I'm not gonna place any bet that it's not there. Now I'm convinced, I don't know what's on the drives.")

Re:Last Sentence

[Raenex]

he has the power to assist

The power to assist is not the same thing as standing in the way. That's why the judge used the word assist and compulsion in his decision.

Re:Last Sentence

[Cummy]

But isn't he in court because of reasonable suspicion? Legal wording (if it is a part of any judgement) to make sure that every one is kept on their best behavior. In any event, how would they compel him to do so? Lock him up? On what charge? Disrespecting the judge? Wouldn't that be like in the days of king Henry, being detained at the kings pleasure? If they say he is guilty prove it or leave the man alone, don't ask someone to help get themselves convicted. If he is a criminal he will mess up again until then let him be.

Re:Last Sentence

[chrismcb]

The last sentence in the summary reads like nonsense to me and does not seem to contribute anything

Isn't that what this was all about? The government has reasonable suspicion there is illicit data on the HD, but the judge said they couldn't compel him to give up the passkey. Unless they KNEW he had the passkey.

Re:Last Sentence

[Spazmania]

This is terrible advice. You can bankrupt yourself this way and the state doesn't have to compensate you even if you really were innocent. If you truly have nothing to hide, your best bet is to hide nothing. That maximizes the speed with which the police can clear you as a suspect and zero in on the suspects they can't clear. Besides, you remember the old saw about "round up the usual suspects?" How do you think someone joins the list of "usual suspects?"

If you do have something to hide (related to the alleged crime or not) then yeah, shut up and lawyer up. Or if you're actually under arrest then shut up and lawyer up. They don't arrest you until they're pretty confident it was you. Time to let a professional sort it out.

Re:Last Sentence

[JakeBurn]

Yes, entirely accurate. I also specifically mentioned that looking in through the window does not allow for a search as you have a reasonable expectation of privacy where you wouldn't opening the front door. Opening the door allows them a legal vantage point into your home as the act of opening the door itself is your direct allowance of whomever you opened the door to to view anything beyond it.

Re:Last Sentence

[Lord Bitman]

That sounds more like the fourth amendment than the fifth, though.

I'm sorry but...

[Nickodeimus]

I don't know what you mean by encrypted. I never encrypted anything on my computer\laptop\tablet\phone, your honor.

What is the method / software used

[sageres]

I would like to know what is the method and software that is used to encrypt the hard-drive in such a way that FBI has no way of breaking a decryption, other than asking a judge to compel the discovery.

Re:What is the method / software used

[Saethan]

TrueCrypt can do this easily with a properly chosen key. And some non-free options like the one my company uses to encrypt all employee mobile work devices(I don't have a work laptop so I can't recall what software they use)

Re:What is the method / software used

[ewieling]

Truecrypt.

The FBI has admitted defeat in attempts to break the open source encryption used to secure hard drives seized by Brazilian police during a 2008 investigation. <URL:http://news.techworld.com/security/3228701/>

Re:What is the method / software used

[pipatron]

Pretty much anything open source. If you're not allowed to see the source (skype, hardware disk encryption, proprietary encryption, windows built-in encryption) you can bet that FBI has a master key.

Doesn't mean it's safe just because it's open source, but broken or bogus encryption solutions which are open source are quickly found out.

Re:What is the method / software used

[gweihir]

Nothing special. Just follow the current NIST recommendations. That would be AES-128 or AES-256 with a secure mode and a good (high-entropy) passphrase. TrueCrypt on Windows and LUKS on Linux would both be good choices.

While it seems quite likely that nobody can get in there, even if some part of the US intelligence community can, they would have every reason to keep this very quiet and only use information it gives them when there is absolutely no risk of their capability to become known. This means that even if it would have given them Bin Laden, they would have only used the info after they had set up a really convincing cover. The reason is that as soon as there is a suspicion of AES being compromised, nobody they need to listen to would use it anymore.

Now, if you are really paranoid, use several different AES finalists in combination with independent keys. It is highly, highly unlikely all designers have been compromised and other than that, I do not see any possibility of something like this being ever broken with the constraints this universe puts on us.

Obligatory XKCD

[emddudley]

XKCD 538: A crypto nerd's imagination vs. what would actually happen

Re:Obligatory XKCD

[auric_dude]

http://xkcd.com/1200/

Re:Obligatory XKCD

[laughingcoyote]

The interrogator's imagination of what would happen: "Hit him with the $5 wrench. He'll give up the password."

What actually happens: "Ow! Ow! Alright, here's the password!" (Not said: To the non-hidden volume, which is seeded with things that are embarrassing but legal, explaining why I'd want to encrypt them.) Truecrypt can make an undetectable hidden volume, and the computer will behave totally "normally" if only the visible one is mounted. If anything is written to the hard drive with only the visible volume mounted, it may corrupt the hidden volume data, but it won't reveal it or show a smaller size than the size of the partition.

Re:England

[Nickodeimus]

Two years could be a much better sentence than allowing them access to your ... data.

Forgive my ignorance...

[fuzzyfuzzyfungus]

Does the 5th amendment right to avoid self-incrimination apply only to the particular charges being brough in a given case, or does it cover any statement that could be incriminating, even if it were in a different proceeding, or if the record from Case A were to be used as evidence in Case B?

Say, in the case of an encrypted HDD, it's reasonably plausible that a broad spectrum of the suspect's electronic activities will be there. Common software tends to be a bit 'leaky' in terms of recording what it does(temp files, caches, search indexes, etc.) and most people don't have entirely separate computers for each flavor of crime they are engaged in.

If somebody were being charged for one crime that probably left evidence on the HDD(kiddie porn, say); would the fact that they know that there is evidence of CC-skimming(but, unlike the kiddie porn, the feds have no circumstantial evidence or other grounds for belief) justify a 5th-amendment refusal to decrypt the volume? Would the other potentially-incriminating stuff be irrelevant because it isn't among the charges(even if the court record could be used as evidence to bring future charges)? Would the suspect be compelled to divulge the key; but the prosecution only have access to material relevant to the charges being filed, with some 3rd party forensics person 'firewalling' to exclude all irrelevant material?

Re:Forgive my ignorance...

[kscguru]

Does the 5th amendment right to avoid self-incrimination apply only to the particular charges being brough in a given case, or does it cover any statement that could be incriminating, even if it were in a different proceeding, or if the record from Case A were to be used as evidence in Case B?

No, it applies to all cases ... if you state something in case A, it can be used in case B. Which is the point of the protection: if you are on trial for jaywalking, and can "prove" that you were not jaywalking because instead you were robbing a bank across town, the law cannot compel you to state where you were (thereby confessing to some other crime). You can volunteer it / waive your right (and be an idiot), but the law cannot force you to confess.

If somebody were being charged for one crime that probably left evidence on the HDD(kiddie porn, say); would the fact that they know that there is evidence of CC-skimming(but, unlike the kiddie porn, the feds have no circumstantial evidence or other grounds for belief) justify a 5th-amendment refusal to decrypt the volume? Would the other potentially-incriminating stuff be irrelevant because it isn't among the charges(even if the court record could be used as evidence to bring future charges)? Would the suspect be compelled to divulge the key; but the prosecution only have access to material relevant to the charges being filed, with some 3rd party forensics person 'firewalling' to exclude all irrelevant material?

I didn't see the warrant specifically mentioned, but "normally" the search warrant has to specify exactly what is being searched, and is thus ONLY valid for what is being searched. For example, the search warrant would say "the file named kiddie_porn.jpeg", and thus only that file (and not ccfraud.txt) becomes evidence. That said, warrants can also be broad - the hard drives themselves were presumably seized because the search warrant said "any computers and electronic storage devices located at 123 Perpetrator Street". Fishing expedition warrants saying "all files showing evidence of kiddie porn" tend to get thrown out, but a warrant saying "all files under C:\kiddie_porn" backed up by evidence (a P2P log) showing that files in fact were placed within C:\kiddie_porn is probably valid - and a warrant backed up by a P2P log is almost certainly what the search warrant this judge is ruling about says.

Not being a lawyer, I can't tell you what happens if the person examining the encrypted contents happens to see evidence of some other crime. But the physical analogy is this: if the police show up with a warrant to search your house for "computers", they are obviously entitled to seize all computers. And if they walk through your house and see illegal drugs sitting on the table, that's admissible evidence ("in plain sight") (Interestingly, it cannot be seized because the warrant does not specify "drugs". But what happens is the cop calls the judge and says "I'm executing warrant A for computers and see drugs on the table, can I get warrant B to seize the drugs?" and the judge faxes over a warrant right away). But they are not allowed to rifle through all your drawers and closets - drugs found there are not admissible evidence because they are not "in plain sight". (Unless you give the police permission - and they WILL ask. Which is why lawyers always advise saying "I do not consent" - you cannot stop the search / seizure, but not consenting makes any evidence found without a warrant inadmissible and the police potentially liable for misconduct). It's difficult to guess how courts would apply this standard to searching a HDD, but they would do it by starting with the physical analogy and figuring out how it applies to electronics.

What's happening in this case is that the prosecution knows files with kiddie porn names were downloaded. But they still cannot prove the files contain actual kiddie porn. (Maybe this guy is sick and thinks naming his legal porn files

Re:Forgive my ignorance...

[Kjella]

If somebody were being charged for one crime that probably left evidence on the HDD(kiddie porn, say); would the fact that they know that there is evidence of CC-skimming(but, unlike the kiddie porn, the feds have no circumstantial evidence or other grounds for belief) justify a 5th-amendment refusal to decrypt the volume?

Well first of all if the police only knows that the material possibly or probably exists but not how you're implicated then the 5th should apply, since this whole case revolves around the testimonial value of decrypting the information. But if they find it proven through other evidence that you have the decryption key, then decrypting it doesn't give any additional testimonial evidence. It does cause the involuntary production of evidence, but you can not refuse to give say a DNA sample that would prove your guilt either. And if they first have legitimate reason to use it in one case, then they can use the DNA sample or the pot they found during the search to implicate you in other cases they had no knowledge of before. If you lose the 5th, then really the only thing you're left with is "I don't recall" and see how long you'll stay in prison for contempt of court.

P.S. In order to avoid another defense they will not compel you to provide the decryption key itself, only the decrypted contents so it doesn't help to say the key itself would incriminate you.

Re:Forgive my ignorance...

[muridae]

I didn't see the warrant specifically mentioned, but "normally" the search warrant has to specify exactly what is being searched, and is thus ONLY valid for what is being searched. For example, the search warrant would say "the file named kiddie_porn.jpeg", and thus only that file (and not ccfraud.txt) becomes evidence. That said, warrants can also be broad - the hard drives themselves were presumably seized because the search warrant said "any computers and electronic storage devices located at 123 Perpetrator Street". Fishing expedition warrants saying "all files showing evidence of kiddie porn" tend to get thrown out, but a warrant saying "all files under C:\kiddie_porn" backed up by evidence (a P2P log) showing that files in fact were placed within C:\kiddie_porn is probably valid - and a warrant backed up by a P2P log is almost certainly what the search warrant this judge is ruling about says.

Not being a lawyer, I can't tell you what happens if the person examining the encrypted contents happens to see evidence of some other crime. But the physical analogy is this: if the police show up with a warrant to search your house for "computers", they are obviously entitled to seize all computers. And if they walk through your house and see illegal drugs sitting on the table, that's admissible evidence ("in plain sight") (Interestingly, it cannot be seized because the warrant does not specify "drugs". But what happens is the cop calls the judge and says "I'm executing warrant A for computers and see drugs on the table, can I get warrant B to seize the drugs?" and the judge faxes over a warrant right away). But they are not allowed to rifle through all your drawers and closets - drugs found there are not admissible evidence because they are not "in plain sight". (Unless you give the police permission - and they WILL ask. Which is why lawyers always advise saying "I do not consent" - you cannot stop the search / seizure, but not consenting makes any evidence found without a warrant inadmissible and the police potentially liable for misconduct). It's difficult to guess how courts would apply this standard to searching a HDD, but they would do it by starting with the physical analogy and figuring out how it applies to electronics.

What's happening in this case is that the prosecution knows files with kiddie porn names were downloaded. But they still cannot prove the files contain actual kiddie porn. (Maybe this guy is sick and thinks naming his legal porn files with kiddie porn names is funny). So the prosecutor was hoping to compel this guy to hand over the encrypted files (whose names they knew), under a warrant that compels him to be truthful about their contents (by having a neutral 3rd party do the work). The judge decided that the prosecutor does not have enough evidence to prove this guy actually knew what was in the files (maybe he operates a repository with files stored on an encrypted disk, but does not himself have access to the files). The judge also implied that if the prosecutors DID have evidence of what was in the files (maybe 1 or 2 got left on unencrypted drives by the P2P program as intermediate files and the filenames matched?), he probably would authorize the warrant and require this guy to decrypt his drives.

If, during a reasonable search, something else illegal is found while conducting the search in a lawful manner, that evidence is valid. See cases where the cops show up for a domestic dispute, and arrest everyone on drug charges because the heroin/crack/meth is sitting on the table. If, on the other hand, the warrant was just for the computer and drives on the suspect's desk, and a cop decided to go looking through the sock drawer and found some weed, that should be inadmissible.

Re:Forgive my ignorance...

[Hatta]

The 5th amendment applies to all incriminating data, no matter what anyone else tells you. If anyone tells you otherwise, they are trying to deprive you of your constitutional rights. Unfortunately, that includes the SCOTUS.

Re:Forgive my ignorance...

[Hatta]

But if they find it proven through other evidence that you have the decryption key, then decrypting it doesn't give any additional testimonial evidence

I'm sorry, that's complete bullshit. If an act of testimony increases your chances of being found guilty, that testimony amounts to "bearing witness against yourself".

Re:Forgive my ignorance...

[femtobyte]

So far as I can tell (IANAL), the 5th Amendment self-incrimination protections apply to the contents of your mind, not the contents of your safe. The contents of your safe are protected against "unreasonable search and seizures" under the 4th, which can be pried into under reasonable suspicion. If the government already knows (has established as fact in a court case) that you set the combination on a safe, then there's no 5th Amendment protection against being required to tell the combination (even if there are "unexpected" incriminating things in the safe) --- the incriminating items in this case are not the combination held in your mind (protected by the 5th), but the contents in the safe (not protected by the 5th). So, if the government has a 4th-amendement-satisfying cause to search the safe they know you control, you're illegally obstructing an investigation by not turning over the combo. In this particular case, the government didn't already know the defendant was the one who set up the encrypted drives: revealing the key would incriminate him of being in control of the drives, when someone else could have done it.

Re:Forgive my ignorance...

[fuzzyfuzzyfungus]

Requirements vary by jurisdiction; but something like the 'Regulation of Investigatory Powers Act'(for the limeys among us) explicitly covers key handling. In jurisdictions with less recently updated laws, some ad-hoc analogy to historical physical security measures will probably be applied.

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.

Mountain out of a molehill

[DNS-and-BIND]

This is all a big brouhaha over nothing. The Fifth Amendment has a remaining lifespan measured in years, not decades. There was already a call to give up on the Constitution, naming the document "downright evil". Now we have Bloomberg saying that the Boston bombing will have to change the way we 'interpret' the Constitution. No, I'm not kidding, the Mayor of New York City really said these words:

"The people who are worried about privacy have a legitimate worry," Mr. Bloomberg said during a press conference in Midtown. "But we live in a complex world where you're going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change. Look, we live in a very dangerous world. We know there are people who want to take away our freedoms. What we cant do is let the protection get in the way of us enjoying our freedoms. You still want to let people practice their religion, no matter what that religion is. And I think one of the great dangers here is going and categorizing anybody from one religion as a terrorist. That's not true ... That would let the terrorists win. That's what they want us to do."

Encryption keys? It's arguing about the wrong topic. These silly arguments about the Fifth Amendment will soon be about as relevant to our lives as the Austro-Hungarian Empire.

Re:Mountain out of a molehill

[Umuri]

Did you even read the quote you posted?

"The people who are worried about privacy have a legitimate worry," Mr. Bloomberg said during a press conference in Midtown. "But we live in a complex world where you're going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change. Look, we live in a very dangerous world. We know there are people who want to take away our freedoms. What we cant do is let the protection get in the way of us enjoying our freedoms. You still want to let people practice their religion, no matter what that religion is. And I think one of the great dangers here is going and categorizing anybody from one religion as a terrorist. That's not true ... That would let the terrorists win. That's what they want us to do."

Emphasis mine. That quote states that our interpretation will change to PROTECT our freedoms against the fear-mongering people trying to increase security at the cost of it. I'm all for lambasting people for taking away one of the few documents that got this country on the right track, but at least pick quotes that backup the statement you're trying to make...

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...

Re:Mountain out of a molehill

[Anonymous Coward]

You mean just like they stated the Patriot Act would make us safer and not abridge our rights? Don't be such an obtuse fool -- politicians will spin whatever they say to get support. Bloomberg knows that changing the "interpretation" of the Constitution is a hell of a lot easier than actually changing it.

I for one don't feel like the government's "protecting" over the past decade has made me feel more free -- quite the opposite.

Re:Mountain out of a molehill

[Nidi62]

I love how the person who said the part you highlighted is the same person who banned the sale of sugary drinks over a certain size in restaurants as well as enacted the greatest restrictions on the 2nd Amendment, and wants to hide cigarettes in convenience stores among other things. Someone needs to teach him what the word "hypocrite" means.

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

[Anonymous Coward]

We know there are people who want to take away our freedoms.

yeah, they're in government, bloomberg included.

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:Mountain out of a molehill

[IamTheRealMike]

The article calling for giving up the constitution isn't calling for the establishment of a police state, as you seem to be implying. It's pointing out that arguing over interpretation of an ancient document that doesn't evolve with the needs of the time is unnecessary for freedom (as evidenced by other countries and America's presidents own frequent disregard for it), and causes unnecessary problems. Example: people who justify gun ownership not on any kind of reasoned argument about the needs of the time, but just "because the constitution says so". There may well be good arguments for high rates of gun ownership in 2013 but "someone thought it was a good idea hundreds of years ago" probably isn't one of them.

Re:Mountain out of a molehill

[Impy the Impiuos Imp]

Did this buffoon Bloomberg even look at the "olden days", when murders were much, much higher, even adding in terrorist attacks?

He is a pandering idiot. But we knew that already from pop cups.

Re:Mountain out of a molehill

[DNS-and-BIND]

"Every Communist must grasp the truth, 'Political power grows out of the barrel of a gun'"
-- Mao Tse-Tung

"Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party."
-- Mao Tse-Tung

"That rifle on the wall of the laborer's cottage or working class flat is the symbol of democracy. It is our job to see that it stays there."
-- George Orwell

Re:Mountain out of a molehill

[Sloppy]

Now we have Bloomberg saying that the Boston bombing will have to change the way we 'interpret' the Constitution. No, I'm not kidding, the Mayor of New York City really said these words

You introduce that as though it's some kind of extreme example, but don't you think it makes sense that people in government, SHOULD always be the main opposition to constitutional limits on government's power? If you ever find yourself looking to mayors, presidents, senators, councilors, etc to somehow use as inspiration or role models in upholding the constitition, then you're doing it wrong. The constitution is an expression of peoples' will to be protected from .. guess who? Mayors, presidents, senators, councilors, etc.

The person you're quoting doesn't actually have a say in the matter, except as a persuasive advocate. Out-advocate him by calling him on his bullshit, such as the bullshit about how we "live in a dangerous world." (Hey Bloomberg, compare longevity estimates now vs 1789, and then get back to me on who had serious security problems.)

Re:Mountain out of a molehill

[Sloppy]

Sorry, Umuri, my thread-fu is weak. Would delete and repost in the right place if I could.

Re:Mountain out of a molehill

[the eric conspiracy]

Police can search your home at any time without a warrant.

What the 4th amendment does is protect you from whatever they find from being used against you in court if they can't justify the search.

Re:Mountain out of a molehill

[Kreigaffe]

Er, I'm pretty sure what Bloomberg is actually getting at is that:

Security is going to be more invasive and pervasive than in the "olden days", because TERRORISM!
It'll be unconstitutional, and that'll have to change, because GUNS ARE BAD!
We're not going to just focus on Muslims, because THE CONSTITUTION!

In short, Bloomberg is just being his assholish self again, saying a whole lot of nothing. I'd wager he was upset the bomber wasn't a right-wing white middle-aged American male mad about health care or our black President. He made that prediction about the Times Square bomber almost immediately, I can only imagine he's just waiting for his prophecy to come true so he can howl and scream about these horrible right-wing evil hicks out there.

Re:Mountain out of a molehill

[steelfood]

Bloomberg's an idiot.

The bill of rights will still be relevant for the next twenty or thirty years. This coming generation of kids who grew up in the shadow of 9/11 might not regard the constitution so highly, but we have at least until they take power.

Re:Mountain out of a molehill

[moeinvt]

Respecting the rule of law is absolutely necessary for freedom.

There's no "expiration date" on our individual liberties. The First Amendment was ratified at the same time as the Second. How often do you think you should have to "justify" your Right to free speech and argue for it on the basis of "need"?

I know it's hard to believe, but We, The People granted powers to the government. We, therefore do not ever have to provide a "justification" or demonstrate "need" to exercise our Rights. Especially when we explicitly prohibited the government from infringing on them when we created the government.

The Constitution can "evolve" as much and as quickly as The People want via the Amendment process.

Re:Mountain out of a molehill

[cdrudge]

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.

No we didn't. There was no marshal law. There wasn't even an emergency order. It was a shelter in place order, requesting people to stay in there homes with doors locked for their safety. Martial law, by definition, requires the military to control things, which wasn't the case. It was civilian authorities.

Home searches were also done. In many cases I'm sure the search was with homeowner permission. I know there was at least one unverified (AFAIK) video of a team forcefully searching a home. But there wasn't much supporting evidence as to when, where, and why things happened as they did in the video. If a home was searched, against a homeowners permission, and the suspect wasn't found but some other evidence of a crime was found (illegal gun, drugs, etc) I'm sure there would be a legal heyday on 4th amendment grounds.

Re:Mountain out of a molehill

[tomkost]

When you consider the highly restrictive laws to which he has dedicated his political career, I think your emphasis highlights how hypocritical his double speak can be. He's after ALL of the GUNS to be COMPLETELY banned which is a clear and total destruction of the 2nd amendment. I mean heck, if the guy thinks it's his right to ban to large sodas and guns for our protection, what wouldn't he ban for our safety? He's a MUCH MUCH MUCH bigger threat to our freedoms than any terrorists!

Re:Mountain out of a molehill

[CanHasDIY]

Intentionally obtuse, or too thick to see the obvious?

Guessing the former.

Re:Mountain out of a molehill

[dcollins]

"Marshal Law" is a cleverly-named comic book character in the tradition of Judge Dredd:
http://en.wikipedia.org/wiki/Marshal_Law_%28comics%29

"Martial Law" is the troubling imposition of military rule by authorities on an emergency basis:
http://en.wikipedia.org/wiki/Martial_law

Re:Mountain out of a molehill

[CanHasDIY]

Right on! While we're at it, we should stop regulating the sale of medication. Let me put what I want in my body, damn it!

Right, because sugary drinks and deadly narcotics are exactly the same thing.

Jackass.

Re:Mountain out of a molehill

[Archangel Michael]

"Cause to believe or probable cause to believe" .... are very important words. It isn't a right to search our houses, without consent, it is the exact opposite.

Was there cause to believe or probable cause to believe that the suspect is in THAT(randomly chosen) house? The answer is "NO". Could he have been, in THAT house, sure, but that is neither cause or probable cause.

Cause to believe = Cop saw him run into THAT house. (roughly)
Probable Cause to Believe = Cop saw him run into the yard of THAT house, but lost sight of him somewhere around THAT house. (roughly)

Neither of those happened. Additionally they were going door to door searching, which is exactly what the 4th Amendment is about. Think Redcoats in 1775, searching for troublemakers going house to house ... Probably used a term that roughly meant "National Security" (Crown/King/England) back then to justify it. It has nothing to do with courts, it has to do with security of your person and effects. YOU are not secure if you can be searched for any ginned up reason, even if it seems legitimate.

Re:Mountain out of a molehill

[Archangel Michael]

" There was no marshal law. There wasn't even an emergency order. It was a shelter in place order,"

Semantics. Like, it isn't a "war" it is an "overseas contingency" or it wasn't "terrorism" it was "workplace violence". You may feel better by parsing the words differently, but the result is exactly the same, meaning it is the same. Undeclared Martial Law is Martial Law, the result is exactly the same.

Or do you support Thousands of troops with REAL Assault Rifles and Armed Tanks with 50 Cal guns patrolling streets searching for one guy. Personally, I think it was overkill. AND it proved to be ineffective. It was unarmed civilian that found the guy, not the troops banging on doors looking for him. This scares me more than the one guy running did, he was caught, the armed troops are still out there.

Makes fishing expeditions illegal

[OrangeTide]

And requires the police and DA to do some detective work before a conviction is possible.

As for leaders who are dissatisfied with the protections given in the constitution, use the democrat process that we have to amend the constitution. It's quite possible to change it. Don't like the 5th amendment, then propose something else. Ignoring the laws we have on the books isn't acceptable as then they will be inconsistently applied. Inconsistent justice is not justice at all.

Re:Makes fishing expeditions illegal

[Anonymous Coward]

Fishing expeditions were already illegal. It didn't make it so, it was just a judge applying common sense to the law.

Re:Makes fishing expeditions illegal

[OrangeTide]

Something is only legal (or illegal) if a judge agrees to interpret the law as such. It's a fine distinction, but an important one in a common law system.

It has to do with foregone knowledge

[Okian Warrior]

It's a subtle point described in the judges decision.

If the government has knowledge of particular documents, they can force you to present them. This includes forcing you to open your safe or decrypting your hard drive.

If the government has no knowledge of the contents of the hard drive, no information from other sources that indicate that you have specific documents it wants, then it can't force you to decrypt your hard drive.

The judge's position was that since the government had no indication of whatever documents are on the hard drive, producing them tied the defendant to the documents - providing evidence of control and ownership. Since that evidence (control and ownership) was not available to the government beforehand, it would be compelled testimony.

I think this is also reasonable in light of the fourth amendment. If the government doesn't have knowledge of specific documents, it can't go "rummaging around" on your disk looking for things.

Re:It has to do with foregone knowledge

[avandesande]

Beyond that how can they prove you have the key? Perhaps you wrote it on a sticky note and it is lost... can they penalize you for not providing the key?

Re:It has to do with foregone knowledge

[Hatta]

If the government has knowledge of particular documents, they can force you to present them. This includes forcing you to open your safe or decrypting your hard drive.

If the government already knows something, it doesn't need me to do anything. It can use the information that it already knows. If the government doesn't know something, and that something is incriminating, then forcing me to reveal that something violates my 5th amendment protection against being forced to bear witness against myself.

How did he encrypt it?

[hawguy]

What encryption algorithm did he use that's FBI-proof?

Re:How did he encrypt it?

[PhxBlue]

ROT-13.

Re:How did he encrypt it?

[Virtucon]

Well, AES-256 is readily available but I guess only the Feds and the accused know what was used.

Anything that is worth it's salt (pun intended) will cause grief for any person trying to decrypt the data. There's lots of tools out there, just go look at a few.

I would recommend looking at TrueCrypt http://www.truecrypt.org/ and OpenPGP http://www.openpgp.org/ first.

Re:How did he encrypt it?

[hawguy]

Well, AES-256 is readily available but I guess only the Feds and the accused know what was used.

Anything that is worth it's salt (pun intended) will cause grief for any person trying to decrypt the data. There's lots of tools out there, just go look at a few.

I would recommend looking at TrueCrypt http://www.truecrypt.org/ and OpenPGP http://www.openpgp.org/ first.

Yes, I know there's lots of tools out there, that's why I asked the question. I've looked at a few, but I don't know which ones are so difficult to crack that the FBI was willing to try to get the judge to compel the defendant to reveal the key and risk having the judge rule that the defendant is within his rights to not reveal the decryption key. It seems like if the FBI secretly had the ability to break the encryption, they would have done that instead of risking that the judge would rule in the favor of the defendant. Though I guess it's possible that they *did* break the encryption and know what's there, but were looking for a way to make the evidence known without revealing that they cracked it.

Re:How did he encrypt it?

[Virtucon]

Well as of a year ago, here's a few tidbits on AES and the NSA.. But that was a year ago and I don't think the NSA would be sharing
their resources with the FBI on something like a potential kiddie pr0n case.

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:How did he encrypt it?

[KeithJM]

Another possibility, as the summary implies, they might be trying to get the defendant to provide the key just to prove that the defendant knew how to decrypt the hard drive and had access to the contents. That is a classic 5th amendment protection.

Re:How did he encrypt it?

[EmagGeek]

I have it on good authority he used ROT-32 on 4-byte-wide words.

Re:How did he encrypt it?

[140Mandak262Jamuna]

Be doubly sure. Apply ROT-13 twice on all your documents.

Re:How did he encrypt it?

[blueg3]

It's almost certainly AES, since that's what's used in almost every encryption product out there. AES is government-proof.

The algorithm's not the problem. It's every other aspect of security that someone (usually the vendor or the user) manages to screw up, rendering the encryption useless to an attacker.

Since they tried for "months" to decrypt it, either he had a very good password or it's something that uses a many-round PBKDF (combined with a good password).

Re:How did he encrypt it?

[steelfood]

Probably Truecrypt on Linux.

That having been said, if your encrypted information was deemed important enough, your HDD contents would just be copied over to the NSA's data processing facility, and it'd be broken in a few months or so.

Your only real protection is your lack of importance.

Re:How did he encrypt it?

[fibonacci8]

And the doubly strong successor ROT-26.

Where we stand

[Synerg1y]

There is a baseline to all of this and that's: does the government know what's on the encrypted drive?

If it does, such as in the case of the guy moving child porn across the border from Canada, the agents SAW the kiddie porn, so when ordered to decrypt the harddrive the government already knew what was on there.

If the government doesn't know what's on there and only suspects it thats when the 5th kicks in.

Make sense?

Re:Where we stand

[moeinvt]

"Make sense?"

Not to me. If the government agents want to swear under oath that they saw the material, their testimony could be used as evidence. I don't see why their supposed "knowledge" should make any difference in the matter of whether or not the accused needs to turn over their encryption keys.

Re:Where we stand

[Synerg1y]

If a cop sees paraphernalia in a car, he has "probable cause" and can search the vehicle including forcing his way in. If an officer sees kiddie porn on a laptop, he has the same probable cause to search the laptop and force the defendant to turn over any "keys" necessary to do so.

Re:Where we stand

[Algae_94]

Ok, they have probably cause to search the laptop. Forcing the defendant to open the door for them is not included. Why would the defendant ever comply to this if the material on the laptop was terribly illegal? I think I'd rather take the punishment of failure to give over an encryption key.

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:Oblig xkcd is wrong yet again

[NotSanguine]

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.

This is so very true. See Here for details.

Re:Dafuq is "Feldman"?

[hedwards]

$22k a year? I'd be willing to not edit the submissions for a fraction of that.

Re:England

[camperdave]

From what I understand, it doesn't even have to be your key. If someone slipped an encrypted flash drive into your pocket, you could be sent away for refusing to divulge the encryption key - even though you have no possible clue what it might be.

Victimless crimes?

[Okian Warrior]

I sometimes wonder at all the victimless crimes we seem to have.

In this case federal prosecutors not only don't have a victim, they don't have evidence of a crime. The only way to convict the defendant is to get the evidence from him.

I think the constitution was made specifically to protect us from these sorts of "investigations of suspicion"; specifically, the founding fathers recognized that many activities may seem suspicious from the outside and in certain contexts, but that the government can't simply come in and rummage around for reasons to arrest someone.

This is especially salient in today's world, where innumerable crimes go unaddressed even though there are real victims, and investigating and prosecuting would be trivial. Spam, phishing fraud, identity theft, stolen laptops where the laptop tells the owner where it is, robocalling - all crimes where an average citizen has to beg the government to intercede... to no avail.

Having "suspicious activity" but no evidence should be a clear signal to the authorities. Drop the case, or do something to get real evidence. This general "he's done something wrong, we only need the tools to do our job" thing has to stop.

Do your job by protecting real victims.

Re:Victimless crimes?

[Zero__Kelvin]

" found emule logs on an unencrypted drive showing over 1000 file transfers most of which had explicit names that strongly suggested the file was child pornography. Names such as "7yo boy and ". "

The filenames used are always accurate, and can absolutely trusted. That is why I am so excited that the one I found named "Angelina Jolie - Jennifer Anniston - Lezfest" is almost done downloading!

Re:Victimless crimes?

[moeinvt]

A crime definitely occurs when children are used in the production. Selling or re-selling the material would also seem criminal because it is profiting from the exploitation of children. Purchasing might be considered criminal as well because it provides the financial incentive for the producer.

I can't think of a convincing argument for why "possession" is anything but a victimless crime however.

Re:Victimless crimes?

[guruevi]

Possession doesn't always mean that you were the perpetrator of the crime. All it means is that someone or something has put their stuff with your stuff for whatever reason (transportation, framing, extortion ...).

It has come that mere possession of an item (whether it be drugs, weapons, pornography or state secrets) has become a crime but it is morally wrong to convict someone if all you can prove is possession because it doesn't prove who committed the crime. In best case it is (or should be) circumstantial evidence.

Re:Victimless crimes?

[Zero__Kelvin]

" But when there are hundreds of incriminating filenames it moves beyond accident or just one or two files with misleading names."

I take it you have never used a P2P network to download adult videos*. The vast majority of filenames have misleading information in them.

" What if a person installs vault grade doors on their home with a passcode? Should a court not be able to order the person to allow the police into their home?"

Your analogy is severely broken, since it is impossible to kidnap and hold a person hostage inside a hard drive. In your example there may be exigent circumstances such as that. In the encryption case there is not. While it is true that information about a persons whereabouts may be on the drive, one can as easily "compel" the person to reveal said whereabouts as the key revealing the location

* I would never do this myself of course. Hot babes having sex is a dirty thing, and nobody should ever like watching it. Anyone who does is a pervert!

Re:Victimless crimes?

[Cummy]

I think you are right of course, but then many of us might be criminals if we have an Apple or Samsung product. They have been found to exploit the young and we might have contributed to the exploitation. Crap, I hope the feds don't lock me up for my Ipad

Re:Victimless crimes?

[Zero__Kelvin]

"First, regardless of whether the filenames accurately depict what the file contains, the man downloaded a goodly number of files whose names fairly explicitly indicated child pornography "

Again. No they DO NOT. Because you cannot discern from the filename the content of the files it is the exact opposite of explicit. Furthermore, it isn't even implicit. What you are doing is saying that filenames aren't accurate, but that they none-the-less are accurate. Again, the filenames in no way indicate content, with the exception of the extension. Most of the files have some variation of indication that they are illicit, such as pthc (Pre-Teen/Hardcore) etc. and yet almost all are of legal aged adults. Since you don't understand that, you are not able to appreciate how ridiculous your claim actually is.

I can't remember...

[Anonymous Coward]

Politicians, police, and heads of major bodies are trained to answer "I can't remember" to questions where a refusal to answer is not permitted.

By Law, in the USA, the statement "I cannot remember" can NEVER be categorised as lying (without a freely offered self-confession of this fact). Understand that the USA is one of the obscene nations where lying to law enforcement goons is a serious criminal offence in itself, whereas the same law enforcement goons have full State authority to use lies as a tool of investigation and interrogation. The reason every lawyer in the USA states that you must NEVER talk to law enforcement goons without a lawyer present is because of these facts. Innocent people can be lawfully converted into criminals in the USA, simply by how they respond to a manipulative and dishonest line of questioning.

Even in the UK, lying to law enforcement goons is not a criminal offence in and of itself (at worst, you can be charged with wasting police time- but there the lie has to be one that suggests false details about a crime that cause unnecessary and useless investigation).

All nations can 'force' a person to reveal a password under some legal principle or other, if the circumstances are right. 'Force' means, of course, that a refusal to comply is a crime. "I cannot remember the password" will work for any elite individual who actually exists above the law (like senior 'banksters' in the USA). It will not work for an ordinary target of law enforcement.

Good lawyers always offer cynical advice. How often have you read stories of famous Americans refusing to be breathalysed at the scene of a DUI incident. The lawyer has trained these clients that the penalty for refusal is FAR lower than the penalty for being found DUI. Forced decryption follows the same logic. For political targets, the USA uses the obscene system of 'contempt' and sequential re-incarceration- effective turning the penalty for the offence into one of life in prison.

The argument about "reasonable suspicion" is an interesting one. It does, however, smack of turning 'presumed innocent' into 'presumed guilty'. Should the command to force decryption be accompanied with a promise that only the expected incriminating digital evidence be used against the individual, and that other illicit digital content that may be found with no relationship to the current case should be ignored, if it proves that the expected material is NOT present within the digital 'safe'?

In other words, if law enforcement goons are wrong about you with their current claims, should you be forced to incriminate yourself over an unrelated 'crime'? After all, if you reward law enforcement goons for engaging in 'fishing expeditions', clearly this tactic will only grow.

Re:what happens if it's cracked ?

[Saethan]

I'm sure it'd be permissible, but with a proper key, only without an understanding of how encryption works should you believe anybody has the computing power to crack the current encryption algorithms.

Those darn dems

[WindBourne]

They are following the constitution. Now the neo-cons will be upset about that and insist that their buddies at SCOTUS to overrule the 5th.

Re:what happens if it's cracked ?

[HungryHobo]

If they can crack it they're totally free to use it.

imagine that there's a body buried someone in kansas. they can't force you to tell them where it is so that they can go collect evidence against you from it.

But if they find it themselves they're free to use it.

for encryption the search space is a mathematical one but otherwise it's similar.

of course if the NSA or some such can crack it there's no way that they'll admit it for something as trivial as a conviction for some petty criminal because then everyone would know it had been cracked and would use a different form of encryption and the NSA would have to do all the work of cracking that new one.

Re:what happens if it's cracked ?

[Whorhay]

I don't think it would be illegal. The only reason that this is an issue is because they either can't or won't break the encryption themselves. Instead they are trying to compel the suspect to divulge information that could be inciminating. If they had other evidence proving that there was evidence on the encrypted device then they could legally compell the suspect to do so.

So far as breaking the encyption there are a couple possibilities in play. The government might have access to the computing power or theniques necessary but it is doubtful that some generic police department or prosecutor would have access to even the knowledge that such a resource was available. The government wouldn't want to tip their hand in that kind of way when they can continue to let our enemies think their communications are secure.

Personally I think it's unlikely that any government possesses a computer capable of breaking the best current encryption protocols. But if they did we'd never know about it until long after it was useful information.

Re:what happens if it's cracked ?

[kwerle]

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

Then you simply watch too much television.

Chicken Little, take 100

[Zontar_Thing_From_Ve]

I can't get real worked up about that. You sound like a guy I know at work. You did forget the obligatory quote from Jefferson or another founding father containing dire warnings about giving up liberty.

I've just heard too many people rant and rave for years about how the Constitution is being ignored, destroyed, etc. to get worked up about this. When George W. Bush was president, we heard that he was going to declare martial law and suspend the elections. Yet the man obeyed every Supreme Court decision that came down and when he stepped down, as required by law, the people who swore he never would give up power had no answer. Then the other side started to claim that Obama doesn't care about your rights, blah blah blah. Despite the hysterical ramblings we get here, the US legal system has remained independent as always. In fact, the only place that I've noticed where rights really and truly do seem to be disappearing is Western Europe, but nobody complains about that. You can still express distasteful thoughts in public in the USA and not be put in jail as long as you don't make threats against individuals, but Western Europe is at a place right now where you can get serious jail time for saying things that in no way invoke threats on anyone.

Re:what happens if it's cracked ?

[Anonymous Coward]

What if the accused claims copyright protection and coverage under DMCA? The investigators would be violating DMCA in cracking the encryption, right?

So, sort of like a car?

[uncqual]

So, it's rather like if the police found a special car with very strong windows and combination locks. They have strong evidence that it's got a lot of heroin in it and want to get inside it to search it and have a warrant to do so but can't get it open.

They think, but don't have much evidence to support that belief, that you had unrestricted access to the car interior and therefore have the combination and can open the door for them.

What this ruling says is that they can't compel you to product the combination because then you would be being forced to reveal that you did, in fact, have the combination and, hence, access to the inside of the vehicle which would be incriminating given the contents of the car.

If, however, they found a surveillance video that showed you opening the door of the car using the combination you could then be compelled to provide the combination as that would not reveal, for the first time, that you actually had access to the interior of the car.

Is that correct?

Re:So, sort of like a car?

[muridae]

yeah, that sounds about right.

Re:So, sort of like a car?

[GameboyRMH]

So the important thing to take away from this is that if law enforcement questions you at all about an encrypted drive, you don't just deny them the key, you remain silent about it.

Re:So, sort of like a car?

[Hatta]

That's some pretty involved mental gymnastics they came up with to work around the fifth amendment. In reality, it's much simpler. Any information a suspect provides is testimony. If that information increases the chance of the suspect being found guilty, then it is incriminating testimony. No one can justly be forced to provide incriminating testimony.

Re:So, sort of like a car?

[Spazmania]

Not correct. If asked your legal name, you can't take the 5th. They may have proof that a person with your name committed the crime. They may not have proof that's your name, so answering would increase your chances of being found guilty. You still have to answer because your name cannot intrinsically be incriminating.

Indeed other judges have compelled decryption when state has demonstrated that the defendant does in fact possess the encryption key. This judge's ruling is completely compatible with the others.

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.

Lessons

[Anonymous Coward]

Things I learned from reading the ruling:

1. As usual, keep your mouth shut. The guy merely admitted that he lived alone in his current residence for 15 years before he got smart and lawyer-ed up, and that fact makes an appearance in the ruling. It doesn't hurt much and they would have figured it out anyway, but it definitely didn't help.

2. Use whole-disk encryption and encrypt everything. All evidence against him mentioned in the ruling was obtained from unencrypted drives and were what should have been private bits and metadata that leaked or never making it to the encrypted drive, especially log files. They have highly incriminating file-names, drive letters, peer-to-peer download logs, basically a ton of metadata. While this ruling almost certainly doesn't cover all the evidence against him, it's not clear the FBI would have anything at all if it weren't for the two drives that they found unencrypted. Although they must have had something else to go after him in the first place.

3. IMO he really dodged a bullet at least in this narrow instance. Crudely speaking, Judge says it isn't reasonable to conclude that both the files in question necessarily exist and that the defendant had access to them (it sounds like the real problem is the latter). This when they have file-names, log files, and the disks in question were taken from his residence where he has lived alone for 15 years, and while he certainly hasn't admitted the disks were his, I don't see an active claim to the contrary either (which I'd likely support but he needs to say it). I'm very pro-encryption and am generally not happy with the court compelling encryption keys, but this is one of the weakest cases for not doing so that I could think of, and is probably why the FBI decided to go for it and now potentially lost big if this it the burden or proof they are stuck with to prove ownership or control of data on a disk.

I can't hand over the key

[Opportunist]

I have files on my Hard Drive that are encrypted, with the key being stored on a USB dongle. Unfortunately, that dongle went missing.

So I now sit on a lot of files that I can't access and couldn't turn the key over (but hey, if you find the dongle in your search, be my guest), but I know the moment I delete them I find that darn dongle...

Re:I can't hand over the key

[Nyder]

I have files on my Hard Drive that are encrypted, with the key being stored on a USB dongle. Unfortunately, that dongle went missing.

So I now sit on a lot of files that I can't access and couldn't turn the key over (but hey, if you find the dongle in your search, be my guest), but I know the moment I delete them I find that darn dongle...

In this case, you can encrypt the whole collection with like truecrypt, this time use a passphrase you won't forget. This way, if someone else finds the dongle, they can't access the files without the passphrase, and if you find the dongle, you are golden. But meanwhile the files are safe under another layer of encryption...

Re:I can't hand over the key

[Opportunist]

Between you and me: I have an inkling that they won't find the dongle...

Re:Very little precedential value

[muridae]

Can still be used as case law, or persuasive precedent, in other cases. "Look, your honor, here is how another judge ruled and his reasoning. You don't have to agree, but you should consider this ruling."

The guy knows about Truecrypt

[betterunixthanunix]

Now that you gave him a password and he does not see what he wants, he just assumes you used a hidden partition, and gets right back to beating you. The problem with deniable encryption is that you have deniable encryption software, and everyone will assume you are using it. You give your "innocent" password, and then they ask for your "other" password.

Re:The guy knows about Truecrypt

[laughingcoyote]

If the interrogator has already decided you're guilty, and is going to beat/torture you regardless, I fail to see how it makes any difference even if you really did have no idea the encrypted data was on the machine and have no clue what the password even is, or if you really do only have a single encrypted main volume because you handle, for example, sensitive data from clients and aren't hiding anything illegal at all.

So I guess I really don't see what the difference is. In that case, you're screwed even if you really are innocent. Maybe you really aren't doing or hiding a thing illegal, but how does even that help you in a scenario like you put forth?

Re:The guy knows about Truecrypt

[betterunixthanunix]

Well, let's put it this way: given that you know about Truecrypt and its hidden volumes feature, imagine that you are interrogating a suspected mafia enforcer. You had a wiretap order, you watched the guy receive encrypted email from a known mafia boss, and now you are asking him for his Truecrypt passphrase. He gives you a passphrase, but when you decrypt the drive you do not see any email from the mafia boss, only mail from the guy's wife and daughters. What is your first assumption?

As you said, there is no difference between deniable encryption and other solutions if the interrogator is willing to torture you into giving up your key. If the interrogator will not torture you for a key, you might as well keep your mouth shut. The only situation where deniable encryption has any real advantage is one in which you are required to reveal some, and all that matters is that some valid plaintext is decrypted; I do not think that is a very realistic scenario, and it is completely irrelevant if you have already been arrested.

Really, a smartcard with a "kill switch" is a much better idea. If you have time to shutdown your computer (e.g. to stop RAM-freezing), you have time to destroy a smartcard (you can combine these operations into a single emergency "kill switch"). This makes recovering your files difficult, of course, but solving that problem is very much dependent on your particular situation.

Re:No faith

[GameboyRMH]

Sad truth, and I think the first (non-techie) old farts who will understand encryption probably haven't been born yet :-(

Re:England

[GameboyRMH]

True, it could be quite easy to get someone framed. Create a flash drive with an empty encrypted partition*, drop it in enemy's pocket, pick up a pay phone anonymously,** wait for enemy to enter low-surveillance public area** and call the cops and say "I just saw two guys browsing child porn on a laptop, one of them was [common outfit, average description] and the other was [enemy's description and clothes] and he took a flash drive that was plugged into the laptop and gave the other guy money! The guy with the flash drive is still in [low surveillance public area], hurry!"

*Without getting your goddamn fingerprints and DNA all over it, and bought with cash, ideally from a vending machine

**is VERY hard to do and will get harder

...the FBI has had no success in getting the data

[fustakrakich]

I don't believe that for a second. They just won't want to show that they broke the encryption to fool us into thinking it is safe to use, so they are trying this trick of compelling the guy to talk.

Two words

[Arthur B.]

Deniable encryption

Re:Real world question?

[dranga]

It sounds like it's time for some sort of proxy key management service.. where userA gets paired with userB, userA has the keys for userB, and B has the keys for A, but neither has their own keys to unlock their data... user A just asks userB to unlock the data once in a while. Then when asked, the reply could be 'Oh, BillyBob193 has the key, I just ask him to unlock it. And he's really good at knowing if I sound like I'm being coerced... Oh, and we just chat over an IRC server hosted in some foreign country, so, good luck getting their logs.. and I think BillyBob might actually live in some other country too and just ssh's in to my laptop here, so.. good luck finding and coercing him too... And even of you just sign up for the service, but still have your own keys, it might be good for plausible deniability... just make sure you aren't caught typing it yourself.

Re:what happens if it's cracked ?

[guruevi]

Most likely he didn't use a simple passphrase. 256 bits is only 32 characters. And most (decent) passphrase-based systems unlock a key which is then used to unlock the rest of the data.

And that is IF he used a passphrase and IF they know what crypto algorithm he chose. Truecrypt for example allows you to stack encryption algorithms so you may even have a flawed algorithm (one with a hidden backdoor), they still can't crack the rest.

Re:Ahem

[Asmor]

I don't know, this looks like a reasonably suspicious post to me

FTFY