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."

Comments

My goodness

[niftydude]

An outbreak of common sense. I can scarcely believe my eyes.

Now to see if it holds.

Re:My goodness

[roman_mir]

By the way, in case somebody doesn't understand what the 'fifth' is, it's the lack of authority by the government to force somebody to testify against themselves.

To understand its roots, you have to look back at when kings and other rulers would capture and torture somebody to get a 'confession'. When people are tortured, most will confess to just about anything, so torturing is a very simple way to get a conviction (or to murder somebody, whichever comes first) and using torture to get a conviction can often lead to murder at the end of torture anyway.

But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director "taking the fifth" makes no sense, she wasn't on trial.

Saying: 'I am taking the fifth' only makes sense when you are on trial or a suspect of a police investigation, but it doesn't make sense to say "fifth" when you are testifying to Congress.

You can refuse to answer questions, but invoking the fifth amendment has no meaning in that context, AFAIC she admits her guilt and/or lack of understanding of the law when she says that.

OTOH in this case I am NOT convinced that the fifth amendment is relevant in cases of encrypted data!

Forcing somebody to unlock their data is not the same as forcing somebody to sign a statement. After all, it's real data, it's already there. By being forced to unlock the data you are not being forced to say something new, it's not new information that is on the disk, it's not like you are forced to say: I am guilty, here is the body.

You are forced to open a box that may have data providing that you are guilty, but that information is already there and it's not new, you weren't forced to first create that data and then give it up, you are forced to open the data that existed already in a form that is not attached to you, it's independent of you, it is already existing outside of you.

How is that equivalent of being tortured (or punished) into saying the words: I am guilty, here is the stuff you are looking for?

I am just being pedantic here, the fifth is not necessarily a protection against being forced to give up data that already exists that you do not have to create or produce at the moment of giving it up.

Re:My goodness

[msobkow]

My understanding of the fifth is that it only applies to information that can't be collected under a warrant.

For example, if you have a lockbox with incriminating documentation, and the police can provide sufficient evidence for a warrant, you can be required to unlock the box. However, you can still plead the fifth if a lawyer is asking about your "intentions" for the contents of the incriminating box.

So I think there is a valid question of whether the FBI had the right to force the lock on "the box" of encryption if they didn't have a warrant already. That's like the police breaking and entering to seize evidence; it would be thrown out in court because it wasn't collected properly.

They have to have evidence of a crime before they can get a warrant. But once they have a warrant, they have the right to open "the box" of encryption.

I believe that also means they have the right to demand the keys to the box: your passwords.

Re:My goodness

[Anonymous Coward]

He hurt us undoubtedly, but I think you're being a bit defeatist. We can still recover from this. It's easy to blame the politicians (and they are scum) for their poor reactions and using 9/11 as an excuse to steal our freedoms, but the truth is that politicians in this country are still very beholden to public opinion around here. It's the people that have to turn the corner to stop this madness. If you can convince all of your neighbors that the wars on Terrorism, Small Amounts of Pot, and All Things That Might Harm Children are bad for America, America will turn around and become great again.

Re:My goodness

[Hatta]

Bin Laden's stated goal was to goad the US into a prolonged and expensive war that would cripple the US. He achieved that.

"All that we have to do is to send two mujahedeen to the furthest point east to raise a piece of cloth on which is written al Qaeda, in order to make generals race there to cause America to suffer human, economic and political losses without their achieving anything of note other than some benefits for their private corporations," bin Laden said.

Re:My goodness

[MightyYar]

By any measure, Osama won on 9/11.

How about measuring him by his own words and stated goals? The man's whole dream for the Middle East went up in a puff of Arab Spring. "His" own people rejected his methods and goals.

Re:My goodness

[saleenS281]

Not at all true, his ultimate goal was the downfall of the US. Just like previous to that the Taliban's ultimate goal was to get Russia out of Afghanistan. The success of his endeavor can't be measured in the scope of a decade. The results of his actions have set the US well down the path of collapse. It opened the floodgates for the corrupt among us to take every last straw of power they could and abuse it to no end. It's very unlikely we'll be able to close the spigot of unregulated executive power that DickBush exerted and ObamaBiden have extended.

Re:My goodness

[j00r0m4nc3r]

This is what happens when a nation fail to educate its citizens.

Without a doubt, this is the most important point you can make in the whole thing. I think the school system here is entirely lacking in educating people about the importance of freedom, what it is, how it comes to be, how it gets eroded, and the effects of that erosion. Sure we make kids read 1984 and Animal Farm, but IMO this doesn't nearly go far enough. There is absolutely nothing more important in our society than preserving freedom. We should have entire classes devoted to the subject. I know we teach history and civics et al.. but in my experience it's mostly just fact-learning -- dates, people, etc.. Not enough critical analysis of how all those people and events affect freedom, not enough education about what it's like to live in a non-free society. I don't think Americans in general have any idea how bad it can get, and how easily that badness can seep in, and how hard it is to get it back

Re:My goodness

[interkin3tic]

Curious how he stated that was his goal only after it had already happened.

Before: "We will destroy the great satan! BRING IT ON! "

After: "Uh... we MEANT for that to happen! Ha ha! We're wasting your tax dollars! Again, that was totally our goal from the start!"

Re:As usual, rubbish article

[Anonymous Coward]

Currently there is no child porn. It doesn't exist. Nobody can take the contents of those hard drives and display child porn. Performing a mathematical transformation on it such that it becomes child porn is producing it. If defendant is made to produce child porn, he should have immunity from the results.

Can't say I agree with this one

[Millennium]

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.

Re:As usual, rubbish article

[AmiMoJo]

I have lots of old encrypted data that I no longer remember the password for. Years of mail archives made in the 90s that I can't recall now. I keep them around in case I ever happen to remember and because they are only a few megabytes.

I also have a few old HDD lying around that are fully encrypted but which I destroyed the key files for. Formatting them takes a long, long time. Now the key is gone there is no way to decrypt them, so essentially they are full of random bytes. Lots of companies do this too, to avoid lengthy and expensive drive sanitizing.

Merely owning or having control over data is no proof that you know how to decrypt it.

A way to genuinely be unable to decrypt your HD

[Anonymous Coward]

Here's what you do:

1. 1) Get a stack of ~50 non-sequential, well-used one-dollar bills.
2. 2) Shuffle them into a random order. Store them in the desk drawer next to your computer.
3. 3) Your password to your TrueCrypt drive is the 100-digit number formed by taking the two least significant digits of each bill in order. When you find yourself starting to remember the password, shuffle the bills and change your TrueCrypt password. For maximum randomness, make sure you have 50 unique sets of digits.
4. 4) What are the odds that a cop who finds a small stack of unmarked bills will allow them to enter into evidence? Much more likely, they'd simply vanish in the search.
5. 5) Should they enter into evidence, what are the odds that they'll stay in order?
6. 6) If the bills vanish, you have 10^100 possible passwords, a ~300-bit number. If they make it into evidence but scrambled, you have 50!, a ~200 bit number, as long as you made sure you had no duplicate digit sets.
7. 7) You can always plausibly claim that either (4) or (5) happened, and thus you can't give up your password, as much as it pains your sense of justice to be unable to help the prosecutor.

Re:A way to genuinely be unable to decrypt your HD

[deadweight]

Best part is you don't have to DO any of it but have the bills and claim you did LOL

Can't remember?

[onealone]

In cases like these, what's to stop the defendant from saying they don't know the password, or can't remember?