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Judge Orders Child Porn Suspect To Decrypt His Hard Drives
An anonymous reader writes "After having first decided against forcing a suspect to decrypt a number of hard drives that were believed to be his and to contain child pornography, a U.S. judge has changed his mind and has now ordered the suspect to provide law enforcement agents heading the investigation with a decrypted version of the contents of his encrypted data storage system, or the passwords needed to decrypt forensic copies of those storage devices. Jeffrey Feldman, a software developer at Rockwell Automation, has still not been charged with any crime, and the prosecution initially couldn't prove conclusively that the encrypted hard drives contained child pornography or were actually Feldman's, which led U.S. Magistrate Judge William Callahan to decide that forcing him to decrypt them would violate his Fifth Amendment right against self-incrimination. But new evidence has made the judge reverse his first decision (PDF): the FBI has continued to try to crack the encryption on the discs, and has recently managed to decrypt and access one of the suspect's hard drives... The storage device was found to contain 'an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders,' approximately 707,307 files (among them numerous files which constitute child pornography), detailed personal financial records and documents belonging to the suspect, as well as dozens of his personal photographs."
Reading that made me ask three questions:
1) What kind of encryption did the FBI break?
2) Can they do it again, for any arbitrary encrypted data?
3) If 2), what kind of decryption should we use instead of 1) ?
Weasel-wording it like that makes me think it's probably random manga pictures from his browser cache and not real child pornography.
He should inform the honorable judge that he's forgotten the decryption parameters or whatever they are called.
This way, he puts the ball back into their court. That is, to prove that he indeed still remembers these parameters.
That will be a tough one to prove.
having an "intricate electronic folder structure" complete with "detailed personal information" is nefarious? Isn't that, essentially, every install of every desktop OS ever? Hell, I think in my 13k file music collection sorted by album and artist there's EASILY 3k folders. And I think elsewhere on the same drive I have my tax returns...
The Judge never said the FBI couldn't have a go at it, just that the suspect couldn't be compelled to hand over the decryption information because of lack of evidence.
Once the FBI had some success of their own and found evidence, then the judge changed his mind.
Where pixels of a certain colour arranged in a certain way on a screen and even the bits used to represent them are illegal. I hate kiddy porn as much as everyone else but feck it throwing people in jail for looking at pictures is taking the piss.
IT IS FURTHER ORDERED that on or before June 4, 2013, Feldman shall do one of the following: (1) meet with law enforcement agents who currently maintain custody of the above- identified storage devices and, without being observed by law enforcement agents or by counsel for the United States of America, enter the appropriate password or passwords into forensic copies of the above-identified storage devices so as to decrypt those devices and allow law enforcement personnel to continue their examination of the files contained therein;
I see we're into the land of "Monster until proven Person" now...
Interesting. I just read about a normal guy who turned pedophile, was discovered to have a 'massive' brain tumor, had it removed, and promptly returned to being normal.
Glad you weren't ever alone in a room with him.
Sheesh, evil *and* a jerk. -- Jade
Absent any proof there was child porn on the drives the suspect couldn't be compelled to decrypt them to provide that evidence.
The FBI however was free to try and decrypt the drives.
After proving that drives at least contained some child porn it was no longer possible.
Imagine the same scenario with a house. The police think you have a grow op. But they don't have any actual proof of a grow up. They have a power bill, show up at your door and you say 'sorry, I run a server farm, not a grow op, no you cannot come in'. The police not believing this story keep snooping around, they watch you bring in lamps and fertilizer and numerous suspicious people bringing packages out. Eventually they get some sort of valid evidence that you have at least one growing illegal plant in your house. Now they can get a warrant, and you have to let them in.
You don't have to provide the police a key to your house, unless they can convince a judge there is definitely something illegal hidden behind your front door. Then you're boned.
Also, if they actually found kiddie pron on the portion that they decrypted, why hasn't he been charged?
So I just read the judge's order granting the ex parte request, and there is something I am confused about. If the 'limited decrypted version' they supposedly have contained child pornography why is he still not charged with a crime? Something seems fishy here.
"In addition to numerous files of child pornography, the decrypted part of
Feldman’s storage system contains detailed personal financial records and
documents belonging to Feldman"
I'm willing to bet they have the file structure (names of files) but have no actual file data, in which case the governments request would add a lot to the case instead of the "little to none" the judge is using to justify the use of the forgone conclusion doctrine.
Not defending anyone for child pornography, I just like everyone else don't like seeing the forced self incrimination of people using the 5th amendment.
I see we're into the land of "Monster until proven Person" now...
That's the assumption I make when I hear an unidentified noise at night.
Sheesh, evil *and* a jerk. -- Jade
It's a kinda roundabout way of saying, "You can't [or at least don't need to] give or show them the secret spell, but you better perform it and release the rune for the witches to see, or may they rain hell on you from every applicable plane of existence."
(Magic analogy, because car analogies are so passé.)
You can hold down the "B" button for continuous firing.
If they have sufficient evidence that both the existence of kiddie porn on the drives, and the defendant's ownership and control over those drives, are "foregone conclusions" (which is the standard that needs to be met to avoid 5th amendment protection), why isn't he simply charged on the basis of that evidence?
You don't have to provide the police a key to your house, unless they can convince a judge there is definitely something illegal hidden behind your front door.
This is the crucial issue, which you are glossing over. You DON'T have to provide the police a key to your house, even if they can convince a judge that there is definitely something illegal hidden behind your front door. If the cops show up to your house with a warrant, there's no requirement that you unlock the door for them. If you don't, they'll just break the door down.
What's happening here is quite different. The judge is compelling this man to assist the police who are trying to incriminate him. This is like issuing a search warrant where you are compelled to tell the police where your hiding places are.
Give me Classic Slashdot or give me death!
The police probably have good reason to want access to all the material. It may lead them to the source of these files or even the creators. And now that they have him on possession of kiddie porn, I suppose forcing him to decrypt the rest doesn't constitute self-incrimination (not sure how US law works). And there's no right not to incriminate other suspects.
Interestingly, I recall a sort of similar case here in Europe: a guy was forced to provide financial details; there was a suspicion of widespread tax fraud. The guy was not charged with anything so he had to comply (as he would not be incriminating himself in any crime he was charged with). They found evidence and then charged him on the strength of that. The court ultimately let the guy walk because of the principle of nemo tenetur. The difference is that in the porn case, the FBI already appears to have the goods on him.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
You can do Shorthand? I'm impressed that you bothered to learn it, what with ubiquitous computers these days.
Not sure what shorthand has to do with disk encryption, though.
Or did you mean "steganography"?
"I do not agree with what you say, but I will defend to the death your right to say it"
Pedophiles are animals, and don't deserve rights.
You are an idiot, and I doubt if you even understand what pedophilia is. Most pedophiles are not child molesters. Most child molesters are not pedophiles. Pedophilia is a psychological condition that causes someone to be sexually attracted to prepubescent children. But most people that feel this attraction do not act on it (since to do so is a serious crime). Most people charged as child molesters, on the other hand, are not pedophiles. They are not attracted to prepubescent children. Instead they are attracted to teenagers that are legally children, but biologically most certainly are not.
But the defendant in this case has not been accused of either pedophilia (which is not a crime) nor child molestation. He has been accused of possessing child pornography, which is a crime even if no actual children are involved. Computer generated animation, or even a pencil sketch can get you arrested. You want to castrate people for drawing pictures?
Forgot to check the AC checkbox?
I think that a safe is the more common close analogy. If the FBI can prove to a judge's satisfaction that the safe is yours and contains illegal substances, you can be ordered to open it, and failure to comply is contempt of court. The only difference is that if you refuse with a safe, the FBI has (more destructive) ways to open it themselves.
You can say no and be sent to jail for contempt, indefinitely, while your lawyer attempts to get the courts to see your vision of constitutional rights vindicated.
Anyway, having been established as having child porn, I think the person in question is fucked. It's just a matter of degrees.
Yeah pedophiles and their pictures of half naked 16 year old girls are sick. I reported my brother yesterday for taking pictures of his daughters football game, sick fuck, doesn't he know there are half naked 16 year old girls bouncing around down there?
What a monster.
Let's say you killed 5 people with 5 different guns and you put each of those guns in a separate safe. The government comes along and unlocks one of the safes and inside that safe is the purchase receipt for all five safes with your name on it (thus proving you own and have access to all the safes). By your logic, they've got a good case for murder on the basis of what they found in one safe, so they should just leave the other four alone.
What the judge is saying is that now that the government can show that you own (and have access to) the other safes and now that they can show it's likely they'll find the other four guns in those safes, there's no longer a Fifth Amendment question since you're not self-incriminating (by providing previously unknown or unprovable evidence against yourself). Rather, it becomes an issue of restricting access to evidence the government already knows about. In other words, the judge can't force you to open a random safe that may or may not be your's, and you can't be ordered to produce a murder weapon you may or may possess or have access to, but you most certainly can be forced to provide access to an area or container which is provably your's and which is likely to contain material evidence of your crimes.
-- "Government is the great fiction through which everybody endeavors to live at the expense of everybody else."
'your economic ability'. Doesn't make any sense. You keep saying that, but all I see you doing is posting on slashdot. I'm pretty sure you're just full of shit.
Most likely it is a bullshit move by the prosecution to circumvent the judge's initial decision.
Look your honor we have cracked the encryption on hard drive one (assemble some PDF's from his bank statements which they might have gotten through a search warrant they don't have to disclose and some random child pornography they have laying around from another case), now his rights don't apply anymore.
Custom electronics and digital signage for your business: www.evcircuits.com
I'm one hour away from full decryption and sellout of the entire USA economy, and you can't stop me.
No, but your mom can. She just called down the stairs that your Hot Pockets are done.
If Slashdot were chemistry it would look like this:Cadaverine
(Note: I am not an american citizen and my understanding of the american legal system is therefore limited)
Most American citizens have less of an understanding of how the courts work than you just displayed, in my experience.
In cases like this, the lower judge can make orders which are right or wrong and if you don't think his judgement is correct, you are welcome to appeal to the appeals court. Appeals then allow for the correction of lower court errors and if you don't like the appeals court decision, you are free to try and get the next higher court to hear an appeal.
In federal cases the appeals process ends at the Federal Supreme Court, which can choose to allow an appeal to be argued, overturn the lower court, or simply let the ruling stand as is and not do anything. Usually by the time a case can get to the Supreme Court it will have taken years since someone has been convicted and sentenced. There are similar paths for local and state courts as well as civil and criminal courts. With appeals to a higher court allowed for decisions made in lower ones. But this process is time consuming, expensive, and is likely to take years and years of waiting.
So the individual citizen can, if he has the time and money (or can find somebody who thinks this is important enough to provide the necessary legal services) can keep filing timely appeals and "fight his way to the top." (Or at least as high as the judges will allow).
In this case, I suspect that there will be a number of appeals based on the less than ideal constitutional grounds of the order, but I'm guessing that this guy will either provide the information or be held in contempt and have to appeal.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
I have a 25 year old girlfriend that looks pretty young.
In some states, that is enough to be considered pedophilia.
If you are not allowed to question your government then the government has answered your question.
It's probably more like the court ordering you to unlock a safe when they have a warrant to search its contents.
-- Sometimes you have to turn the lights off in order to see.
Conspiracy bits aside, if the FBI found something, why would they demand he open the gates to more?
Could they not simply prosecute him based on just what they have so far? That way there would be no 5th Amendment violation, and they would (should?) have sufficient evidence so far to successfully prosecute him anyway.
[ Realize up front that I think people like they are accusing the defendant of being should probably burn, not in Hell, but in the here and now ... ]
I imagine it's to set a precedent.
If the demand is not successfully defended against, they are more likely to be granted a future order without expending "considerable resources". The next time, they will be able to argue "we could expend considerable resources and crack this drive too, but since it's going to be decrypted one way or the other, you might as well have him hand over the keys now". It's a really thin wedge, given that the FBI claiming someone owns a drive when they don't claim ownership, so 5th amendment considerations would likely still attach, but they might be able to find an agreeable judge to push the precedent a little further.
Using the sparing sector list as part of the key might confound decryption, if the encryption is drive level rather than all in user space where it could be fed a false set of sparing sectors, so it's possible that future SanDisk products (among other SSD vendors) might be immune from use of forensic copies.
I think though, that 5th amendment issues might still attach, if they can't demonstrate that he actually has the keys. It'll be interesting to see if the defense tries to play it that way, and what results, if any, come from that angle.
The "it's manufactured data" angle would also be interesting, since presumably they could have obtained pictures and financial data from other sources to make it appear that way. Given that the FBI has "considerable resources" to expend on this type of thing, it's not that unreasonable to ask how those resources were expended: decrypting the drive, or manufacturing evidence which can only be disproven if the drive is decrypted with the keys he may or may not have in his possession, since if it's manufactured, it might still not be his drive.
I'm glad the court ruled against the forced decryption initially, and it will be interesting to see how this plays out, and whether the FBI gets their wedge, and if so, they are successful in using it to leverage further erosions of 5th amendment in a future case, or not.
they're trying to set a legal precedented to override the 5th for future cases, IMHO.
I am not a lawyer, but I suspect that even the most evil SC we can imagine will determine that if a suspect is not subject to prosecution in the absence of an action, then that action is protected.
Imagine again. The Rhenquist SC (generally less evil than the current Roberts SC) said http://en.wikipedia.org/wiki/Herrera_v._Collins that provable actual innocence of a crime is no reason to bar a State from executing someone once they've been sentenced by a court.
An SC that says we can execute someone who can prove they did not commit the crime would certainly be able to authorize anything a prosecutor wants to do. Ironically the generally-more-evil Roberts SC today issued a ruling that substantially undoes the one I cited.
You're assuming that this wouldn't reveal, say, mistakes on his income tax filings.
I suspect that he did something to get *someone* powerful angry with him. It may or may not have anything to do with anything that has been mentioned. If they are angry enough, and powerful enough, then this could force him to reveal his signing key, which would allow messages ostensibly from him to be forged.
Sorry, I don't see the judge as being anywhere close to the right side of the law as stated by the constitution. The more I think about it, the more corrupt this order looks. If they've got evidence, use it to try him, don't coerce self-incrimination.
I think we've pushed this "anyone can grow up to be president" thing too far.
No. Besides, she looks like she's 17, not 7.
But child pornography, in most instances is not depicting sex with children, but sex with underage minors, for instance, a 17 year old, or someone who looks like they are 17.
Yes, people who want to have sex with children is wrong, but the law is expanded far beyond this and people get crazy with the CP label because the law is far too wide. Just like peeing in your back yard can get you slapped with a "sexual offender" label for life, so can publicizing photos of your 25 year old girlfriend who looks 17 get you labeled as a CP distributor.
This is why I don't jump off the deep end and call this guy a monster. For all we know the CP he enjoys looking at is 20 year old women that look young. I sure wouldn't fault him for that. If it is photos of kids, then I agree, he is one sick bastard. But we don't know that, because the law is too broad, so why assume? it just gets you worked up. If you were a juror, that is exactly what they would be going for, too.
If you are not allowed to question your government then the government has answered your question.
Your understanding is horrifically wrong. Your guess at "facts" is laughable. It wouldn't be laughable except you're in the minority and won't actually have any impact. What pedophiles need is mental health care, not prison. Unless, of course, they've actually caused harm (only a small percentage has, you're mistaken with your assumptions that you seem to think are facts) and if they've caused harm they need to see the inside of a correctional facility until they've reached the point where they're able to accept the help from mental health and are able to not harm in the future.
I did a whole bunch of research (I was bored, drinking, and legitimately curious as I don't see the attraction and wanted to understand) for a Fark thread at one point. I, too, thought similarly to how you seem to think. I was wrong, very much so, and have no problem changing my views based on the facts. You're a zealot on a witch hunt and will be seen as one as the tides turn. They're already starting to turn with more people being made aware of the facts and changing their views of registries and extreme punishments.
Actually seek out the facts and respond accordingly if you want. It is not difficult. Follow some links, read some studies, and then make up your mind. Until then you're operating based on myths and hyperbole. If that's what you want to do then all the more power to you but the rest of the world isn't going to join you and will find your credibility lacking.
"So long and thanks for all the fish."
I'm one hour away from full decryption and sellout of the entire USA economy, and you can't stop me.
Is the US economy encrypted?
Maybe that's why I have so much trouble understanding it...
Sheesh, evil *and* a jerk. -- Jade
Because opening up the contents of the hard drive is not self-incriminating. The incriminating evidence is there, it is just being uncovered.
They already have access to the contents of the hard drive, they just don't understand it. That's their problem. This is not analogous to somebody being forced to hand over incriminating notes under the "foregone conclusion" doctrine. It's analogous to the notes being written in some language the accused invented and only he knows. Here are the notes. You figure them out. Forcing the accused to translate those notes would be requiring him to give testimony against himself.
Absent any proof there was child porn on the drives the suspect couldn't be compelled to decrypt them to provide that evidence.
The FBI however was free to try and decrypt the drives.
After proving that drives at least contained some child porn it was no longer possible.
Imagine the same scenario with a house. The police think you have a grow op. But they don't have any actual proof of a grow up. They have a power bill, show up at your door and you say 'sorry, I run a server farm, not a grow op, no you cannot come in'. The police not believing this story keep snooping around, they watch you bring in lamps and fertilizer and numerous suspicious people bringing packages out. Eventually they get some sort of valid evidence that you have at least one growing illegal plant in your house. Now they can get a warrant, and you have to let them in.
You don't have to provide the police a key to your house, unless they can convince a judge there is definitely something illegal hidden behind your front door. Then you're boned.
Better analogy: the police suspect you have a grow op. They cordon off your house, and proceed to try to pick the lock on your front door. Having done that, and gone in and found evidence of wrongdoing, they are now asking a judge to compel you to unlock all your other properties, so the FBI may conduct a further fishing expedition to see if you have anything else they can charge you for.
I'm guessing it's this part of it that protected him:
"nor shall be compelled in any criminal case to be a witness against himself"
There's no clause in the fifth amendment that says "...but if we have good evidence you're guilty, then you have to tell us what we need to know in order to get more evidence."
The police put you in a room and say "CONFESS", and you refuse. Judge says "that's right--you don't have to confess to anything. In fact, you don't have to say anything at all. You can remain silent."
Later, the police find some evidence that suggests you really did something illegal. And really socially repulsive.
Judge thinks for 2 seconds and realizes "Who's going to defend a kiddy diddler? I can rule however I want against this guy and get almost no political backlash. But if I "defend the constitution", I'm a liberal judge letting a monster get away on a technicality." Not a difficult decision for a pragmatic public servant. "Let the beatings begin.".
First they came for the child rapists and I said nothing because everyone would think I was one, too.
"Reality is that which, when you stop believing in it, doesn't go away." - Philip K. Dick
It clearly means the poster isn't paying any rent to his mum for the basement.
Also, if they actually found kiddie pron on the portion that they decrypted, why hasn't he been charged?
Because they're still building the case, of course. The fact that they haven't charged him based on what they already have is irrelevant. They are under no compulsion to rush. Once he's charged the right to a speedy trial kicks in.
The hard drives are evidence of nothing. There is absolutely nothing illegal - implied or explicitly so - about hard drives. The evidence is the data contained therein. That data is being locked by a passcode in the same way a safe can be locked with a passcode. (e.g. http://common2.csnimages.com/lf/49/hash/1564/4498347/1/Honeywell-1-Hr-Fireproof-Electronic-Lock-Security-Safe-%5B2.33-CuFt%5D.jpg)
It's well established that if the government can prove you own or otherwise have access to the safe (i.e. the hard drive) and can prove that a reasonable chance exists that specific, material evidence of a crime can be found inside your safe (e.g. the murder weapon, the uncooked books, or your illegal porn collection), you can be compelled by the court to provide access thereto. The idea being that if the government knows what it's looking for and where to find it, and you have access to where the government is looking, you must provide access. That doesn't mean you have to show them the hidden compartment in your safe where you hid the gun, but you must provide them the access necessary to perform a proper search of your safe.
To rise to the level of self-incrimination, the admission must be something the government doesn't already know. If they know (with reasonable certainty) that you own the safe and that the murder weapon is inside the safe, you must provide access to the safe. If they can't provide evidence that you own or have access to the safe, you cannot be compelled to provide access (because forcing you to provide access necessarily means forcing you to demonstrate that you own or have access to the safe, which would rise to the level of self-incrimination as that is new information that can link you to the crime). Forcing you to demonstrate ownership or access is the Fifth Amendment issue; not the government having said access.
Beyond that, a claim of having "forgotten" a passcode or "lost" a key to something you apparently have regular access to (as an owner or authorized user) while under court order is construed as a refusal to provide access. As such, you can be held in contempt indefinitely until you "remember".
-- "Government is the great fiction through which everybody endeavors to live at the expense of everybody else."
Pay attention to any politician or cop who has to testify under oath. Use their magic words "I don't recall". At this point they already know the drives are his.
Only the State obtains its revenue by coercion. - Murray Rothbard
A good prosecutor never lets something like the law get in the way of a conviction.
I am John Hurt.
Do you have any specific examples of people being convicted for CP when all they had were pictures of people who could easily be on either side of 18?
I was reading just the other day how the entire Traci Lords series of videos (100+, IIRC) is now considered illegal. As well as the Vanessa Williams Penthouse issue, since she posed in that too. The videos and that issue were best-sellers in the 80's.
Dozens of known pornographers, including big corporate ones like Penthouse, got tricked by her deception about her age (using a friend's birth certificate). Nobody knew because she apparently looked several years older than she was, and apparently she was incredibly popular with average people at the time (who were not pedophiles).
So, go ahead and find a private collection of these, digitize them, and put them up for sale on a website. Let's see what happens.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
We have two choices in society. Outright ban encryption and anyone caught with encrypted files is automatically guilty...or the keys are not considered self encrimination
There's a third choice. Respect the right of people to do whatever math they want, AND respect their right to be free from self incrimination. Imagine that, respecting the rights of the people. Bet you never thought of that.
Give me Classic Slashdot or give me death!
Yea well, dogs are dogs. Your stepfather is a person (who can reason, etc - as evidenced by his attempts to suppress/correct his impulse).
I bet you would have made a good Nazi.
For large sets, this will be our guide even unto death, for the LORD will work for each type of data it is applied to...