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U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment
hansamurai writes with an update to a story we've been following for a while. Jeffrey Feldman is at the center of an ongoing case about whether or not crime suspects can be forced to decrypt their own hard drives. (Feldman is accused of having child pornography on his hard drives.) After initially having a federal judge say Feldman was protected by the Fifth Amendment, law enforcement officials were able to break the encyption on one of his many seized storage devices. The decrypted contents contained child pornography, so a different judge said the direct evidence of criminal activity meant Feldman was not protected anymore by the Fifth Amendment. Now, a third judge has granted the defense attorney's emergency motion to rescind that decision, saying Feldman is once again (still?) protected by the Fifth Amendment. Feldman's lawyer said,
"I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. This case is going to go many rounds. Regardless of who wins the next round, the other side will appeal, invariably landing in the lap of the Seventh Circuit Court of Appeals and quite possibly the U.S. Supreme Court. The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0."
An outbreak of common sense. I can scarcely believe my eyes.
Now to see if it holds.
You can never know everything, and part of what you do know will always be wrong. Perhaps even the most important part.
How much cash you got? :/
THINK OF THE CHILDREN!!!
Yeah, I'm always thinking of the children... *drool*
...to extradite from the United States any pesky people who insist on their so-called rights to not decrypt their data and jail them for up to 2 years under section 3 of the Regulation of Investigatory Powers Act 2000 if they persist in pretending they're not guilty.
"I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. [...] The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0." — Robin Shellow
God damn right. I don't care what anyone says about lawyers — this woman speaks the truth, and she has my respect.
Thank you, Edward Snowden.
"Arguments from authority are worthless." —Carl Sagan
Careful, or your hard drive will be next.
Imagine we had this: an accused, who has a safe made from unobtanium (which needless to say, is as hard as Minecraft bedrock) with an unpickable lock. Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed? If this is the case, then why can't someone be ordered to turn over encryption keys in the case of encrypted data where there is a properly issued search warrant?
Oolite: Elite-like game. For Mac, Linux and Windows
That judge didn't say "forced decryption of hard drive violates fifth amendment". The judge said "I'll look at the case and make a decision, and there will be no forced decryption until I make my decision".
Myself, I cannot see anything wrong with the original decision. "Fifth amendment" is about self incrimination in statements to police or to the court. This case is about being forced to give the police or court access to evidence.
If the police has a warrant to search your home, it isn't obviously clear whether you can be forced to open the door, and it doesn't matter in practice because the police is allowed to and will break your door, so the only practical difference is two minutes of work for the police, and a broken door for yourself. This situation is exactly the same, except that the door is unbreakable.
Imagine you stand in front of a house door, the police arrives with a warrant and ask you to open the door. You say "It's not my house, break the door if you like, but I don't have keys to let you in". There is no doubt that the police has the right to get in. But opening the door would prove that you have access to the house, so if the police doesn't know that, opening the door would be self incriminating. Not so if you are _inside_. The police would know that you have access, so opening the door is not self incriminating. Giving the police access to the evidence inside doesn't count as "self incriminating" and isn't protected by the fifth amendment.
And it's the same with an encrypted hard drive. You can't be forced to admit that you can decrypt the hard drive, if that knowledge, the knowledge that you _can_ decrypt, was incriminating. But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.
But they kept telling me to think of the children!
You can't force someone to hand over that key. Not now and not in the past. However, the police has the right to open the safe any way they find fit if there is a search warrant. If they open the safe and you get convicted based on evidence found in the safe, the damage to the safe is yours to pay for. If they find evidence inside the locked safe, it's found in a lawful way and is admissible as evidence.
If they opened the safe without a proper warrant, they would be liable for damages to the safe and anything found inside the safe would not be admissible as evidence in a court case. That is why there are warrants. They are not about forcing people to hand over keys.
I was promised a flying car. Where is my flying car?
If the police arrives with a warrant, you don't have to open the door for them. It is not a crime to not open that door. However, they have the right to knock it down and you can't claim damages that you may occur because of it. You don't have to actively assist the police in serving the warrant. As long as you are not actively obstructing them (putting up extra barricades, destroying evidence after they announced their warrant), you're not doing anything illegal.
If you know there is evidence against you on the encrypted device, you would be incriminating yourself by turning it over to the police. The police can presume there is evidence on the drive, but presumption is not proof. Once you hand over that evidence, it would be admissible and thus self incriminating.
I was promised a flying car. Where is my flying car?
Decrypting a hard drive is no different from letting the police into your house for a search: something the law has the power to order a person to do, provided that the proper warrants are legally obtained. It has long been understood that this is not self-incrimination, even if evidence is later found.
Obviously, decryption orders should be held to the same limits as any other search, with the same requirements for warrants and the same limits. It can be argued that, given the government's recent propensity for warrantless searches, people's fear is reasonable. But calling a properly-warranted and properly-limited decryption order "self-incrimination" is more than a bit of a stretch. Besides which, including it under the umbrella of searches provides new avenues through which to attack the unethical practice of warrantless searches, which must indeed be stopped.
When the EFF defended the group that was making the battle.net daemon, in the loss part of the explanation was that as the computer moves data around between memory and cpu, those are copies, and instances of legally liable copyright infringement. Why is this relevant?
Any sequence of numbers (bytes) can be made into child porn given a sufficient transformation. The instant of doing such transformation is the criminally liable point in time. Otherwise everyone is guilty of possessing child porn, since any file can be transformed into child porn.
The government and even one judge is asking him to do a specific transformation without making him immune from the results. It's insane to argue the 5th amendment does not protect him.
Even the discovery of fingerprints on a smoking gun at a crime scene does not eliminate someone's right to remain silent; so I have no idea what that "different judge" was thinking. He certainly wasn't thinking of due process.
I would wager that the quantity of child pornography that he possesses could determine what extent his final charges are, yes? Therefore, wouldn't it make sense that he would further incriminate himself by giving up that information? So it makes sense to me that he should still retain that protection.
This doesn't make sense. Random bits are of the same as bits that can be decrypted. To follow your reasoning, taking a picture and slicing it in to tiny jigsaw piece would be equivalent to blank paper and bottles of ink.
-- Using the preview button since 2005
"somehow see this case as an assault on their "right" to do whatever pleases them."
The right to pursue happiness.
Once upon a time that included marrying female children.. who bring men happiness by being nice pretty female human beings. Up untill 1880 in some states.
Now even the rich men commit suicide.
He shouldn't be forced to de-crypt his drives because suspected illegal material might be inside them. If police manage to break the encrypted volumes and find illegal material then they have proper reason to assume the other volumes contain the same and hence they can ask him to de-crypt them.
I'm a little confused how anyone can see this differently, the fifth amendment is the right against self incrimination and as long as he doesn't have to open the volume when none of them have been open he hasn't incriminated himself. The second police got inside one of them he is no longer self incriminating himself because at that point he's a criminal, he's guilty, so the fifth amendment doesn't apply anymore. It's pretty simple.
An interesting side note to this, MPAA encrypt all their emails.
The Anton Vickerman SurfTheChannel.com case Remember that Anton complained about his appallingly biased judge, who decided a 'fraud' had been committed (fraud?? WTF) and Anton attached the background documents and emails:
http://stc.occupyuk.co.uk/
If you look at the documents you can see email exchanges between MPAA staff, and they are heavy users of PGP encryption,
https://stc.occupyuk.co.uk/misc762/
(You might have to accept the sites self signed certificate):
https://stc.occupyuk.co.uk/misc762/MPAA_Emails_debeasi_cooperation.pdf
"MPAA has implemented an email encryption system using PGP... after November 2005 you will be required to...."
I thought it was interesting they need to encrypt all their email discussions. If you've nothing to hide then.... well of course everyone should be hiding everything as a matter of self protection, even the MPAA know this.
The law doesn't deal with arbitrary mathematical abstractions. It's about practical matters and intent. The suspect (if guilty) intentionally possesses child pornography and has changed it in a manner that a normal technique will revert it back to its original state.
If they found CP on the decrypted drive as they claim, then why do they need the rest decrypted to get a case?
IMHO, the wording was telling:
"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)"
It sounds like a normal backup of a normal PC and 'up-skirts' shots of Hermione Granger he might be able to present as child porn in sound bits like this, but apparently he knows its not enough to get a conviction because he wants the other drives decoded.
Really defendant should not be punished for refusing to help in his conviction and if their claim his true, he wouldn't need to be punished for that, because they'd already have the evidence they seek. So they DON'T have the evidence and they're simply trying to pull the wool over the judges eyes.
If you let the Fifth go 'for the children', then they'll take it for everyone all the time. It will be an extra charge to be added to the sentence.
A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.
I am very small, utmostly microscopic.
In cases like these, what's to stop the defendant from saying they don't know the password, or can't remember?
A judge that defends the constitution is not desirable to the Republicans or the Democrats. He is an enemy to both parties and will be replaced after this. I think the judge is a hero, but in the USA today, that is career suicide to not let the government trample any and all rights.
Do not look at laser with remaining good eye.
A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.
I have mixed feelings on this. Is it analogous to requiring him to tell where the body is buried, or analogous to requiring him to let them enter his house with a search warrant?
Sheesh, evil *and* a jerk. -- Jade
Prove?? If the drive they'd decrypted proved anything like that, they wouldn't need the rest decoded to get a conviction! They *CLAIM* it does, that claim has to be tested in court.
"He's clearly committed a crime and the common sense thing here is to try him and convict him accordingly"
Yeh, lets skip the trial thing, if the FBI say it it must be true. NOT! Clearly we have the fifth for a reason.
"he encryption keys to the other hard disks now would just provide additional evidence and perhaps the identities of other perpetrators"
Lets hypothesize about what's on his hard drive and how it will help/destroy humanity, then make our decision based on stuff we just made up in our fevered imagination. After all, who needs evidence when you have an imagination!
Er, no. Given an innocuous sequence of bits (A) and an incriminating sequence of the same length (B), one can trivially construct a key (C) which can be XORed against sequence A to produce sequence B (C = A XOR B; B = A XOR C).
Is everyone missing the bigger point? Ok, maybe it's a smaller point. If they cracked his hard drive, what is the useless encryption software he used? Or did they scan his virtual page file or hibernation file for words in RAM and try lists of those? Is the decryption process also blabby that writes temp files to a normal, unencrypted other HDD. (say, C drive) which does its work then erases the file, leaving unallocated but still data-filled blocks on the unencrypted drive?
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Inevitably, an emotional plea related to a single case like this one will lead to a bad precedent. It's worked historically, and continues to work today.
In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
Infinitesimal means infinitely small.
Surely the lawyer isn't suggesting that there is an infinitely small amount of child pornography?
"Have you ever wondered why you're free to post this in public, and haven't been neutralized yet?"
Because I'm not Julian Assange level annoying yet?
" I'm thinking it might be because your view of the state of the world isn't based in reality."
The logic is right there in my comment, its self contained. IF the FBI's claim is true, then they don't need the other drives to convict. IF it's false then they do.
They insist they need the others decrypted, hence their claim on the decrypted drive is false.
The comment stands, despite me being an AC, and is apparently clear enough that you feel the need to comment, but weren't able to break the logic of it.
""The storage device was found to contain 'an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders,' approximately 707,307 files"
i.e. a typical Windows PC has that. Notice they don't claim images, let alone child porn, just files and folders.
"(among them numerous files which constitute child pornography)"
And the FBI has claimed lots of things as CP that aren't, e.g. Tiny Tove, Manga.... So their claim needs to be tested in court. What we do know is they don't think its good enough to get a conviction because they want the other disks decoded.
It's no unreasonable to test FBI claims in court, thats what the court is there for, that's what the Fifth is there for.
Sauteed w butter and garlic. MMMmmmmm.
I have mixed feelings on this. Is it analogous to requiring him to tell where the body is buried, or analogous to requiring him to let them enter his house with a search warrant?
But you can't require him to open the door for you. In fact, he has no obligation to do anything at all. He can go turn himself in at the police station, leaving all of the doors locked and sealed. As long as they're not booby-trapped, he's not committed a crime, nor can he be compelled to help unlock them.
There is ample case law regarding a safe, or hidden chamber in a house. The accused cannot be compelled to identify or assist in opening the safe or chamber, partially because doing so demonstrates that he knows how to open/find it, and also because it clearly demonstrates that it is his property, both of which are self-incriminating.
In the US, it was established early on that it was supposed to be difficult to prove these things to prevent judicial and law enforcement abuses and the use of powerful judicial tools with impunity. I support this concept.
A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.
As said before, that's tough. Same if the police comes to your house with a search warrant looking for stolen goods, you can't say "sorry, can't let you in, there's a dead body in the kitchen". If the police is in a place legally, then they can use anything they can see.
I have been following this for a few days now. My question relates to the decrypted CP that was found on the guy's hard disk. If this evidence were admissible, then why are the police not just convicting him based on that? Is it possible that there was some procedural cock-up which means that the evidence that they have uncovered is not admissible in court for some reason, and so they are trying to obtain more evidence legally? As much as I hate the idea of a paedophile walking free, I refuse to tolerate the idea that the police can just ride roughshod over civil rights until they find evidence of wrong-doing, and then go and backfill a case.
For example, if a policeman executes an illegal search of a man, and finds he has cannabis in his possession, that would be inadmissible. It would also then be unacceptable for the police to use that as probable cause to search his friend [ie: now a legal search, as they have probable cause] to see if he has any, because that makes the whole point of restricting the types of searches cops are allowed to do moot.
What if the defendant was a journalist accused of some sort of snooping/hacking offence. The police have evidence suggesting that proof of guilt may reside on the laptop, but the journalist refuses to unlock it because it contains other secrets that may or may not be even related to this case: - Their list of sources, for example, or evidence to do with other stories that have yet to be published. When you remove the child porn aspect, it seems pretty unreasonable to force the defendant to unlock the data.
But for today: The Shellow Group: 1, Government: 0.
I think I'd reword that last sentence...
But for today: AMERICA: 1, Its Government: 0.
THANK YOU, Edward Snowden!! Americans owe you a debt of gratitude (whether they know it or not..)
You're joking; but you *should* worry about the child porn on your HD. What's that you say? Don't have any? How do you know? How do you know you haven't been rooted until it's too late and there's a knock on the door? Next thing you know, you're in a whole different world because of some compromised software on your machine that a real pedo was using as a stash.
Stalin had up to 3,000 per 100,000 of the population incarcerated, if you call it that. Four times our current rate. And those were living prisoners, doubtful those figures include those he murdered. The Khmer Rouge improsioned nearly their entire population. The North Koreans are near the rate of 1,000 today.
Our rate is high but thankfully nowhere near those of truly evil political systems. We don't have cities full of people held against their will left to die in Siberia. To suggest otherwise is simply wrong and a deliberate attempt to mislead.
There is an urgent need for Fricosu keys on LUKS. What is a Fricosu key? It's a second passphrase set up during the encryption process. Type in the Fricosu key, and the drive silently, immediately, and permanently loses the real decryption key. It's kind of like the IronKey USB drive, which can permanently self-destruct, or just lose the decryption key. Either way the data is inaccessible.
The flaw in this method is that if the drive is imaged first, the Fricosu key only applies to the image you are working on. The original key would still be valid on the imiage.
We managed to compute the one-time-pad you used to encrypt it.
This decision bothers me just as much as the Plan B decision. I don't care so much whether or not it should be available without a prescription (that is a debate for another forum), but I do care about how much power one judge has. In the Plan B case, this is a district court judge from New York, who arbitrarily makes this decision, and expects it to be implemented across the country. There is no en banc review of his decision. He just overrules the entire Federal Government (imagine the power he now has), and thumbs his nose at them. Decisions like that (and this case) of such magnitude should have automatic en banc review.
So forcing you to provide DNA = Not a 5th Amendment violation
Forcing you to decrypt your hard drive = 5th Amendment violation
Can somebody explain how this is consistent?
I predict that in the future, it won't be possible to force decryption in many cases in which the suspected person is a REAL criminal. There is a simple reason for this: he/she won't know the password. There are many ways how you can create an encrypted file that you can open and edit without knowing the password. One way would be to make two passwords. One which you know and one which you don't know (you only know how to use it). Both would be needed for decryption. If you are a bit creative you gonna find many ways how you do such things. The only thing you have to be sure is that you can destroy the unknown password at every time. Of course it is maybe illegal to destroy the password and the justice could put you in the jail or do other funny things. By the way: in the example of above there are mind games possible. You could create a copy of the unknown key and hide it. The result is an encrypted file that you can open/edit and shut down temporary. Of course only as long as the key is not found.
Is it analogous to requiring him to tell where the body is buried, or analogous to requiring him to let them enter his house with a search warrant?
Neither. It is exactly like requiring him to tell them what is written in this physical, paper notebook that the cops cannot read.
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
child pono hiding on hard drive ...
how about beating someone in a private property?
how about making drugs in a private land?
i am so confused.
^(oo)^pig~
You're assuming to know the contents of the non-decrypted files. What if he provides them a password, a given algorithm is processed, the output of which is random bits of information? Will they be satisfied? Probably not. They'll want a password that with a given algorithm produces only what they expect. Your honor, I encrypted random data. That's what the encrypted drives contain. My password is 1234.
If the Govt has not de-crypted the disk, how can anyone testify that the disk has been encrypted? Can anyone distinguish between encrypted data and random data without de-crypting it first?
Bill Drissel
Grand Prairie, TX, USA
There's a very serious question for privacy/security-minded folks that need to figure out --- What was the encryption used on this hard drive that the police were able to crack it?
Put my fist through my alarm clock with its ding-dong death inside my ear. - The Blackjacks.
That is EXACTLY how to wage and eventually win an asymmetric war. Intentionally or not, and there is a very strong case for intentionally, Bin Laden and Al Qaeda come off as military geniuses.
Sorry if that leaves the US military (led by that idiot Bush and the inept Obama) butt-hurt, but it is the truth. It is idiotic to base military response on taunts like "bring it on". The military and civilian deaths, economic and prestige losses by the US, allies and ME civilians is completely out of proportion to the losses suffered on 9-11.
There are a few of us in the US who recognized this tactic immediately. However the majority of the population and the 1% (who stood to benefit the most from war) ignored this and our protests and took the bait. 3,000. hell 30,000 Americans killed is nothing compared to the cost and losses from these ridiculous and never ending wars. (For example: troops are headed back to Iraq, and in fact never actually completely left.)
Many are now unwilling to admit that the US was baited and manipulated into huge losses.
The terrorists have won many battles (from their point of view - which is what counts because as long as they see themselves winning they will continue to fight.) Taking the long view as ME society does, they may yet win the overall war, especially if we keep overreacting to what are essentially pinpricks to a country of 350+ million with 11 aircraft carriers and potentially the most powerful economy on the planet.
"Terrorist" attacks are simply criminal activities and should be investigated and prosecuted as such. Anything else leads to endless and intractable war where we lose far more than the terrorists ever had or could effect.
There seem to be a lot of unanswered questions here...
What do we know about how the FBI came across the information that this person may be in possession of child porn? Were they tipped off by someone? Was it serendipitous? Were they monitoring his internet connection and did they have a warrant to do so? I think the answer to this really determines what evidence, if any, they should be allowed to use.
Did they have a warrant to crack the one encrypted hard drive? Without that or otherwise *strong* suspicion, how could any evidence from that operation be even remotely permissible?
What actual actual evidence from the cracked drive do they have when they say, "constitutes child porn"? Are there actual photos of several children in sexual situations? I ask because that wording smells very bullshitty. For all we know, it could be innocent pictures of his own kids in diapers or something. Or maybe no more than suspicious sounding file names with corrupted and unreadable data.
Furthermore, how do we know these files even belong to him? This guy is in IT, it's *extremely* plausible that these files are months-or-years-old backups of computers that don't even belong to him, possibly files he's never even seen or is aware exist (and before you say "strict liability", I say: my fuckin' ass... you can't realistically expect a backup provider to cross reference every single one of thousands or millions of files and cross reference them with every possible interpretation of every ruling of every law)
A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.
As said before, that's tough. Same if the police comes to your house with a search warrant looking for stolen goods, you can't say "sorry, can't let you in, there's a dead body in the kitchen". If the police is in a place legally, then they can use anything they can see.
However it is not illegal to truthfully say "I don't have the key" or "I don't know the combination" - or for that matter to not say anything at all. It is not illegal to not be physically able to "help the police" by opening doors for them.
I saw my housemate write out records of their illegal gambling operation, or the jewelry I think they stole from the shop down the street and lock it in a briefcase. The same briefcase I use last month so it is filled with my fingerprints and DNA. I can certainly claim that they used it last, and anything in it is not my stuff. I may or may not know the combination as it might have been changed since I used it last. Should I be compelled to say "I can open it"? That sounds like self-incrimination. I was just walking out the door on my way to the police station to let them know my roommate was up to something fishy, but making that testimony now that I am under suspicion would seem to be pretty dangerous to myself.
If you can come up with reasonable examples of situations where an innocent person would be better off not to testify, you're probably looking at a legitimate use of the 5th amendment.
Yeah, I'm always thinking of the children... *drool*
You better get a towel. Just not the one covering the child fresh from the bath. Obama always thinks of the children of the elite not the peasants such as you and me.
While I disagree with the idea of comparing an encrypted hard drive to a locked door, I must admit I'd never even considered the idea of trying to make a person reveal a hidden room in a house.
Perhaps a little off topic, but I am surprised that they cannot do that. I am glad they cannot, but it still surprises me.
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
Amerika isn't dead, America is. The birth of the "Pig Amerika" envisioned in the 60s is finally complete. Delivered by a nominal democrat who wishes we'd all forget that Nazi is a (sort of) acronym for national socialism. Check out the warrantless surveillance currently being carried out against all Verizon customers by the NSA. The 4th amendment is well and truly buried, the 5th (and the rest of the first 10) not far behind.
...Then yes, Al Qaeda is losing. However, if you are familiar with the term "Pyrrhic Victory," you should be familiar with the idea that a person can win technically while also having pragmatically lost. The reverse is also true and has historical precident; a loser can have won their idealogical goal through turning the winning party into a more hated figure than they were.
Nobody will believe him if he says they're encrypted random data. Why would he do that?
Reasonable doubt is limited to what's reasonable.