Federal Magistrate Rules That Fifth Amendment Applies To Encryption Keys

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

Comments

Last Sentence

[steevven1]

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

Re:Last Sentence

[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]

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

[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

[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

[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

[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

[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

[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.

Obligatory XKCD

[emddudley]

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

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?

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

[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.

How did he encrypt it?

[hawguy]

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

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?