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

[Anonymous Coward]

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

Now to see if it holds.

It won't.

I promise.

This is but one more cut...in the 1,000 cuts that will ultimately be the demise of our Rights.

And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

It won't.

I promise.

Re:My goodness

[Taco Cowboy]

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

Unfortunately it won't last long

With so much weighting on this - money, power, greed, and the insatiable desire (on the part of both the Liberals and the Conservatives of the American government) to restrict the liberties of the American people, this outburst of common sense would be anything but a short-flash

Re:My goodness

[rvw]

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

Now to see if it holds.

And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

Fear nothing but fear itself...

Where is the leader who can make this clear? Where is the leader who can offer hope?

Re:My goodness

[taucross]

Not with that attitude, it won't.

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

[Nerdfest]

Many offer hope. It's delivering the reality that seems to be beyond anyone's grasp once they've had a taste of power.

Re:My goodness

[nospam007]

"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 [cnn.com] "taking the fifth" makes no sense, she wasn't on trial."

I you shut your cake-hole when the police interrogates you, chances are that you'll never go to trial. People always seem to think that they can talk themselves out of being arrested or indicted, let me assure you, it's not the case.

Don't talk to the police, ever! It can only hurt you. It doesn't matter if you're guilty or not.

They don't tell you for nothing that everything you say can be used against you, they mean it and they will.

Re:My goodness

[ultranova]

Either "Terrorism" (makes you think who really won, doesn't it?)

Osama did. Not only did he deliver what appears to have been a mortal blow, both morally and economically, but got away with it too, living in comfort and watching his enemies finish his work for him, and finally receiving a quick and easy death just before the onset of old age, making him a martyr in the eyes of his followers.

Re: My goodness

[Anonymous Coward]

She was and is under criminal investigation, tootsiebun, so it made perfect sense.

Re:My goodness

[Anonymous Coward]

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

Now to see if it holds.

And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

Fear nothing but fear itself...

Where is the leader who can make this clear? Where is the leader who can offer hope?

Sarah Palin?

Ouch! Stop punching me!

Re:My goodness

[wbr1]

You forgot one...

"Think of all the terrorist children!"

Re:My goodness

[Squiddie]

See, I think you are still wrong. The data literally does not exist in any other form but that which is under encryption. This is forcing someone to interpret data, not unlocking something. To also request documents, there must also be a knowledge that they both exist, and that they are in the possession of the person under investigation. The court does not know that he does have child pornography in the other drives, nor that they and all the data contained are his and his alone. I do not believe that the court has any power to force someone to interpret an encrypted journal, and I fail to see the true difference between this and encrypted drives.

Re:My goodness

[Joce640k]

Remember: The police have no interest in proving innocence, only in proving guilt.

Everything they say, everything they ask, it's all designed to prove guilt. You only have to use one wrong word and you're in for a miserable time. The police love it when people protest their innocence and/or try to explain things away, it just gives them more ammunition.

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

Re:My goodness

[jythie]

On the other hand, he failed his various stated goals. People often forget that the attacks on the US are not some abstract 'they hate our freedom' thing, but tools towards specific political goal. To say he 'won' is like saying a barricaded criminal who manages to shoot a couple cops before the SWAT team gets them 'won' because they managed to 'hurt' the police.

Re:My goodness

[jythie]

Which is what makes this such a tricky case and why it keeps bouncing back and forth. Both sides are kinda right depending on what analogy one draws to already existing practices. It could be argued that being ordered to hand over documents and such has been a 5th ammendment violation for years, but that horse has already left.

Re:My goodness

[Anonymous Coward]

You take the fifth when under police interrogation which is not part of a trial, so yes, doing it in front of a congressional investigation is very much similar and is not new ground.

Re:My goodness

[Blaisun]

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.

I disagree with your take on the "fifth", you should be able to take the fifth on any statement that COULD be used against you in court, just because you are not there now, doesn't mean that the statement you make will not land you there.

in addition, i will also take the counter point on decrypting the HD. i take the essential meaning of the fifth as to you should never have to provide evidence against yourself. By providing them with the password, or whatever the key is, to the encrypted HD, you are providing them with evidence that they would not be able to get with out your assistance. If they are able to get the evidence(brute force decryption, or what have you) without your assistance, with a warrant, that is fine, but you should never have to assist, in any way, in your own prosecution.

Re:My goodness

[gnasher719]

in addition, i will also take the counter point on decrypting the HD. i take the essential meaning of the fifth as to you should never have to provide evidence against yourself.

You are confused by two different uses of the word "evidence". The phrase "give evidence" means "give information and answer questions formally and in person in a law court or at an inquiry". That is not the same as "evidence" with the meaning "information drawn from personal testimony, a document, or a material object".

You don't have to "give evidence" against yourself. But you can be forced to "provide things that are evidence". There is a good reason why you cannot be forced to "give evidence" against yourself: Because you could be under pressure, threatened, and so on, to give _false_ evidence against yourself. That's not the case when you are forced to decrypt a hard drive: Whatever evidence is found there is the true evidence.

Re:My goodness

[Anonymous Coward]

Here, let me fix the analogy for you. Your criminal doesn't shoot the cops, he infects them with the black plague. Two weeks later, all the cops are dead. Now, who won? By any measure, Osama won on 9/11. I saw it the week after. Our response was wrong then, and has been ever since. Amerika is dead, just waiting on the autopsy.

Re:My goodness

[newcastlejon]

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

For which, no doubt, you'd be charged with the local equivalent of driving without due care and attention.

Re:My goodness

[LMariachi]

"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."

I can’t see whomever you’re quoting, but this is nonsense. While the text of the Fifth protects you from incriminating yourself at criminal trial, subsequent Supreme Court decisions have ruled that it applies much more broadly. People take the Fifth all the time when they’re testifying at hearings or as witnesses, i.e. not on trial. The right to remain silent under police questioning derives directly from it.

Re:My goodness

[fisted]

If you think your thoughts are encrypted, i've got bad news for you.
Anyway, here's the good news: I'm selling these awesome protective tinfoil hats, for $20, a real bargain!

Re:My goodness

[pipedwho]

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

"I don't know, officer" is effectively an admission of guilt. If you don't know your speed, you are basically acceding to the officer's 'evidence' that you were speeding. That is why, as you say, it's far better to say nothing. If he has valid evidence, then you're going down. If not, then you walk.

You don't want to appear rude to the police if you can avoid it, but you need to be careful to not answer any question, direct or otherwise, with anything but verifiable facts (ie. your name, address, etc). It doesn't help anyone if the police get lazy and try to prosecute with no real evidence beyond a vague statement that gets twisted into an implication that you've committed some random criminal act that you weren't even aware existed.

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

[ranulf]

Granted, I'm not an American, so my understanding of US law is a bit wooly, but somebody please correct me if I'm misunderstanding the story so far.

• The "authorities" wanted him to hand over the encryption keys to his hard disk, which would have incriminated him and this violated the fifth amendment.
• He never handed over these keys, yet the "authorities" were able to eventually break the encyrption anyway and prove he'd committed a crime.
• This judge says that this evidence can't be considered because they'd previously asked for the keys and he'd refused.

Where is the common sense here? This guy clearly had child porn on his computer - it's been found without violating his fifth amendment rights. He's clearly committed a crime and the common sense thing here is to try him and convict him accordingly. The encryption keys to the other hard disks now would just provide additional evidence and perhaps the identities of other perpetrators. But if they already have enough to convict him, there is surely no common sense in letting him off while they debate whether they should be allowed access to the other drives or not.

Re:My goodness

[Gr8Apes]

Sarah Palin?

Ouch! Stop punching me!

You brought her into this, you'll have to make her stop.

Re:My goodness

[L4t3r4lu5]

I'm just guessing here, but I believe the judge sees that "You were looking for CP. You found it. What are you looking for now? He's already guilty on the CP charge. You don't get to fish for more stuff on other drives."

Re:My goodness

[Gr8Apes]

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.

IIRC, if you state you don't have the key, nothing else happens to you. Ball is in the prosecution's court. (unless, of course, they find the key on you or somehow prove you knew or should have known where the key was) With regards to encryption, the rules changed, and now you are held in contempt if you don't conjure this key out of thin air. Maybe he wrote it on a scrap of paper that he ate when they came for him, who knows. It shouldn't matter, according to previous stories, they should have enough to put him away for a long time.

Re:My goodness

[Anonymous Coward]

So being compelled to tell them where you buried the body isn't covered by the fifth? The body is there, it is existing "data" so to speak, so all you are doing is telling them where to find it.

Oh, and incidentally confirming that you know of it, including location, which will be used as circumstantial evidence to convict you of a murder you may not have committed if you were just unlucky enough to accidentally discover the site or you saw it being buried but can't describe the real perp for some reason and don't have a good alibi for the time frame during which the murder took place.

Re:My goodness

[Iridium_Hack]

I don't think I could have said it better.

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

[kannibal_klown]

IANAL but it's kind of walking the line of "fishing" for more more proof... perhaps they want to be able to bump up the number of charges to their accurate levels... though I don't know how you quantify charges for child p***. By Gigabyte? By number of individuals? etc. Or perhaps they suspect he's also guilty of related charges (physically interacting with kids, etc.)

For example: you find evidence on his hard drive he murdered two people in a very specific way... congratulations, you got him on murder. But could those other hard drives contain evidence that he murdered even MORE people? Maybe he's a serial killer and bodies 3+ are on the other drives?

Re:My goodness

[gstoddart]

There's a step 3 in there you missed.

A judge initially said he was shielded from being required to decrypt due to the 5th amendment. After the police decrypted his hard drives anyway and found child porn, a second judge said that since they've already found stuff, he wasn't entitled to claim a defense against self incrimination. Basically said he would now have to decrypt because he was already guilty.

A third judge has now said that just because they cracked the encryption on some things and found incriminating evidence, it doesn't mean he's required to decrypt the rest (and in effect self incriminate).

So, he was protected by the 5th amendment, they decrypted *some* stuff, another judge said he would have to decrypt the rest (and violate his 5th amendment rights), but that judge has been overruled.

They will absolutely be able to charge him with the evidence they got when they decrypted the drives themselves. He won't get walking away. BUT, he doesn't need to help them convict him.

Again, I'm not a lawyer, but this is more about how much the accused needs to cooperate with police. In this case, he still doesn't need to cooperate, but the point might be moot, since they've already decrypted some of it.

They are NOT letting him walk away on charges of possessing child pornography. This dispute is entirely about if he is required to help the police convict him by being required to decrypt his data -- and *that* would violate his 5th amendment rights.

Re:My goodness

[Kjella]

"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 [cnn.com] "taking the fifth" makes no sense, she wasn't on trial."

Will your testimony as a witness be admissable as evidence in a future trial against you? Yes it will, which means you can invoke the 5th unless you've been granted immunity.

Re:My goodness

[Rich0]

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.

I don't see that written in the constitution anywhere. Sure, that is what courts have enforced, just like they force people to divulge decryption keys. The fact that courts do it doesn't mean that this is what the founding fathers intended.

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

[PhrstBrn]

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

No! Don't say "I don't know!". If you need to say something to avoid looking like a mute idiot, ask "am I free to go?" and then follow up with "am I being detained?" and finally "please let me know when I am free to go". If they ask for ID, of course give it to them, but beyond that, keep doing that in a loop until they get the hint that you're not talking.

Re:My goodness

[john.r.strohm]

I wish it was that good an answer.

I RTFA. It wasn't.

This was a hearing on a motion objecting to a procedural point. The previous proceeding, in front of a Federal magistrate (not a judge: key point, although obscure) at which the order to decrypt the drives was issued, was attended only by the prosecutors and the magistrate. Defense counsel was not present and was not able to argue against the order. According to TFA, the judge agreed with this part of the motion, set the order aside, and ordered both parties to submit additional briefs on the matter.

It isn't over.

At this point, as I read the tea leaves, even if he wins the 5th Amendment case, Feldman is toast. They found kiddie porn on the one piece they were able to crack. They also found financial data on the drive that ties it to Feldman. Even if the prosecutors are forced to go to trial with just what they have today, they almost certainly have enough to convict him for possession of kiddie porn and put him in prison.

Re:My goodness

[punman]

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.

IANAL, but this is nearer the truth than other comments earlier in the thread, I think.

Having read not just THIS article, but others about Feldman's case, I learned that the prosecution has found, on Feldman's personal computer, unencrypted indexes of file names that are present on the encrypted drives. Many of these files have explicit names about the subject matter contained within, giving them reasonable suspicion that these files actually contain depictions of underage children engaging in sexual activity.

Because the prosecution has this list of file names on the encrypted drives, Judge Callahan determined that Feldman's 5th amendment right no longer applied, as he would not be incriminating himself -- they know what is on the drives, they just need to have them unencrypted to enter them as evidence.

Make no mistake, this man is being accused of perversions that, if true, deserve prosecution to the full extent of the law. However, that does not give the government of this country or any country free reign to ignore his rights as a citizen and as a human being. I am in one sense extremely glad to see the judicial process being carefully applied, so that the accused is properly and legally convicted, and does not get off on a technicality. In another sense, I am also watching this with much trepidation, as precedents set too hastily could erode another one of our rights.

I believe, having read the motions presented in court that are publicly available, that in this case, because they already have evidence that there are files on the encrypted drives which have pornographic names, referencing the depiction of pre-teens in sexual acts, for instance, then the prosecution is justified in forcing the defendant to decrypt the drives and provide the court with the contents of those files.

If they didn't have the unencrypted index, I would probably have to see more proof to feel comfortable with what they are doing, however.

Re:My goodness

[Chickan]

It was never about them hating our freedom, Osama himself said it was because of our support of the House of Saud, keeping them in power in Saudi Arabia, and our support of the state of Israel. To those goals, Osama failed, we still have the same power structures in place in those two countries. Now Egypt and other places are changing, so it was a success in other places.

Re:My goodness

[Loki_1929]

I wish it would hold, but I give that about 1 chance in 20.

The problem is that he isn't being asked to provide the encryption key (information, i.e. testimony) but rather access to a digital area he provably has access to. It's as if the police came to your house with a search warrant, you refused to let them in, and they couldn't break down the door. They don't just go home and call it a day, they get the judge to compel you to open the door to allow them to execute a lawful search. This guy has locked a digital container and the police have been unable to break the lock. If they have a valid search warrant for the digital container, then Feldman can be compelled to provide them access. Not the key (information, i.e. testimony), but access.

They got the order quashed because the law isn't yet crystal clear and this is a situation that cannot be undone. If the order stood and Feldman were to comply, the genie would be out of the bottle. This simply keeps the genie in the bottle until the question can be ultimately resolved and I think existing law is clear enough to say that in the end, Feldman will have to unlock the container (decrypt the drive) to allow the police access to whatever's inside.

Re:My goodness

[Anonymous Coward]

Even if the prosecutors are forced to go to trial with just what they have today, they almost certainly have enough to convict him for possession of kiddie porn and put him in prison.

So why don't they?
What's wrong with this argument -- "Judge, we have plenty of evidence against the perpetrator, he's toast... and so force him decrypt the harddrive, since we are pretty sure there is evidence against him on that drive"

Re:My goodness

[Githaron]

Wouldn't that be the Fourth Ammendment not the Fifth Ammendment? I understand and agree with the Fifth Ammendment preventing forced password disclosure and the Fourth Ammendment preventing the cops from taking/decrypting the drives without a warrant but I am confused how they are breaking the Fifth by decrypting the drives after they had recieved a warrant.

Re:My goodness

[pnutjam]

If the data is there, they should read it. Obviously it is not there. At least not the most important data, the password.

Your also missing the larger point. If you can be punished because of failure to provide existing data, who is to say you don't have some when you are arrested. Those family pictures could have encrypted stenagraphy. Your refusal to acknowledge this could leave you imprisoned indefinitely.

Re:My goodness

[srobert]

I think he could still be convicted for the evidence that was seized without his encryption. He may or may not be guilty. (You're assertion that "he clearly committed a crime" is premature. Have you seen the evidence?.) The evidence should be considered by a jury. But the order to make him decrypt his own hard drive is being batted around as a violation of the fifth amendment. One judge says it is, another its not, etc. If it is a violation, then the portion of evidence that was obtained in this way will be considered inadmissible in court.

The fifth amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Unfortunately, most Americans today would throw out the fifth amendment (and most of the rest of their Constitutional rights) in exchange for promises of protection from terrorists, pedophiles, etc. For most Americans now the notion of due process is a quaint notion that should be dispensed with as quickly as possible. This is what happens when a nation fail to educate its citizens.

Re:My goodness

[samkass]

The summary doesn't really do a good job of summarizing the arguments. The original question was whether or not the defendant was even the one in control of the hard disks in question. He refused to say whether or not he was even in possession of the decryption key and/or if anything on the drives belonged to him. The judge ruled that if he were forced to give up the decryption key it would prove the drives were his, and therefore the key is not simply a "lock" on evidence that he's being compelled to open (ie. you can be compelled to unlock physical locks and it's not considered a 5th amendment issue). Instead, decrypting it is essentially testifying that you controlled the contents.

Once law enforcement was able to decrypt one of the drives through brute-force and prove that the files on it belonged to the defendant through personally identifying information, it was no longer a question of possession. At that point it simply became a lock, and the law is then allowed to compel the defendant to unlock it. Now the question is whether the key to an encrypted drive is different from a physical lock, and whether either the 4th or 5th amendments apply.

Should be interesting, but I think it's even more interesting to know the actual arguments instead of the one-sided summary provided.

Re:My goodness

[Zemran]

And you thought that Michael was the funniest Palin :-P I bet he really hates her for being so much more Monty Python than the origin Monty Python Palin.

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

[DigiShaman]

These children just need a hug. Just don't set off the bomb in doing so.

Re:My goodness

[MightyYar]

That is a stated method, not a stated goal.

Re:My goodness

[Anonymous Coward]

Between going to jail for X decades vs 5X decades I don't think it's going to make a big difference to him in practice.

I'd regard the system more highly if they actually concentrated on catching and jailing more child _pornographers_. e.g. the ones creating all the child porn.

Assuming this guy didn't actually pay for the child porn, jailing him isn't actually going to do much for the children. Many slashdotters watch lots of free porn and still are virgins. There might even be a correlation ;). To me it's a stretch to claiming that watching child porn makes you significantly more likely to rape a child any more than watching porn makes you more likely to rape a woman. Or watching violent movies or playing violent computer games makes you way more likely to go on a killing spree.

If he did pay for the porn, then follow the money and jail those involved too.

Otherwise this seems like just throwing the hysterical masses a bone.

Re:My goodness

[Anonymous Coward]

Invoking the fifth amendment in a congressional hearing is not meaningless. Congressional findings from a hearing are treated as fact in court and are not subject to jury deliberations. Usually, the jury is the finder of fact, but if congress has found, or determined, something from a hearing then the jury is told it is what it is. If she said something incriminating then charges were filed against her she could not rebut that finding. Ever notice that criminal trials proceed civil trials? It's because you have no fifth amendment in civil court only criminal. However, if you go to civil trial with the possibility of a criminal trial you get fifth amendment protection, because anything you say at the civil trial can be entered into your criminal trial.

Re:My goodness

[MightyYar]

This judge says that this evidence can't be considered because they'd previously asked for the keys and he'd refused.

No, he has several drives. Before they cracked one of them, there was no evidence even tying the drives to him. Now they apparently have some evidence tying him to the drives, and they apparently have some evidence to support him collecting child porn on the other (still encrypted) drives. The evidence already uncovered is fair game.

It's a tricky problem... on the one hand, it seems easy to equate it a physical key and a physical lock. In reality, it is more complex, since the "key" is really knowledge and the "lock" cannot be picked, pried, or otherwise forced open in the traditional sense. In the past, if a suspect had some documents ferreted away in a vault, the prosecutors could get a subpoena to crack the vault. Now they have the subpoena, they have the "vault", but they are frustrated because the vault is practically unbreakable.

Personally, I think I side with the defendant.

Re:My goodness

[Anonymous Coward]

The reason it applies to those other circumstances is not because it's been read broadly, only that at those other points (hearings or as a witness) you can still be prosecuted so anything you say on record can be used against you later. A statement in court, even if it's not at your trial, is still on record and under oath (that is, not hearsay) and therefore admissible in other proceedings. You know, res judicata? So it's not any more broad, it just means that if there is still a chance you can be tried for something you are about to say you don't have to say it. The only broadening of the right is that it applies outside your personal trial. Police questioning is the same thing. What you say to them in a statement or under questioning can be used against you the fifth amendment doesn't require it to be at your personal trial only that it could be used at a criminal trial against you in the future.

Re:My goodness

[parkinglot777]

Even though it is likely that he is toast, it does not mean he will be toast. In law, there could be many things sprung up and cause you to lose a case. Or you prosecute it in a way that at the end the current support evidence is not good enough. The more evidence, the better to ensure the winning. If you keep jumping into a conclusion with whatever evidence you have while you could actually get more support evidence (and you know that this evidence will immensely help your case), it could potentially cause you to lose the case. It is a common sense to gather as much support evidence as while you could to ensure the winning.

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

[dcollins]

"He's clearly committed a crime and the common sense thing here is to try him and convict him accordingly."

Well, in theory this is supposed to be the other way around -- you try him and convict him, then you get to say that he's clearly committed a crime.

I mean, law enforcement might be lying here. They haven't proven that he has child porn in a court of law. It's a convenient claim to try and get around the guy's rights. I agree that if they really have evidence they should go to court and prosecute based on that, and the fishing for more files doesn't pass a "common sense" test, so something sounds fraudulent or corrupt here.

Re:My goodness

[gnasher719]

Wouldn't that be the Fourth Ammendment not the Fifth Ammendment? I understand and agree with the Fifth Ammendment preventing forced password disclosure and the Fourth Ammendment preventing the cops from taking/decrypting the drives without a warrant but I am confused how they are breaking the Fifth by decrypting the drives after they had recieved a warrant.

That was the (then) correct situation. They had a search warrant. Imagine he decrypts the drive, and the police finds lots of pictures. But no actual evidence on the drive itself that _he_ owned the pictures and not someone else. In that case, not the contents of the hard drive, but the fact that he decrypted it, would have been evidence that the pictures belonged to him. And that would be self incriminating. But today, the police has actually proof that he is the owner - so the fact that he can decrypt the drive doesn't show the police anything they don't know.

Re:My goodness

[nxahoward]

Of course he won. The basic idea of what he (OSAMA) did was to force us to change our way of life. I'd say he was more effective at forcing America to change it's policies than any special interest group or movement, peaceful or other wise. America as we believe it to exist has been dead since the moment the first plane hit the towers. We just have realized it yet.

Re:My goodness

[dywolf]

No i dont believe so in this case. I honestly lean more towards its admissable evidence. If the contents of a hard drive, or the contents of a letter, are "5th amendement", how far should we stretch it? We could as easily say the presence of fingerprints is no longer admissable, as they are my fingerprints, and thats "testifying against myself". How far can we stratch the concept of the 5th amendment?

Re:My goodness

[Lord Apathy]

I've read several stories on this and here is what I take on this. Seems everyone has a different take on this.

They have evidence that he might have been storing child on the encrypted drives. They don't have any real evidence, such as the pictures themselves, just that he might. What they have done is decrypted a weaker drive and found a file structure that indicates this. Maybe it contains links to common child porn file names and the files have been deleted and can't be recovered. All they have is the names now but no pictures.

File names are not going to be a solid case, they need the pictures themselves. So they suspect the pictures are on the other drives. The ones they can't decrypt. So they are trying to make him cough up the password. Since they haven't arrested him that tells me they don't have a solid case.

Seems to me that it would be in his best interest to clam up and not say a word. Any charges they can come up with to force him to decrypt those drives would be nothing compared to what he would get if they did find child porn on those drives.

Re:My goodness

[Antipater]

Whether or not Feldman is toast is irrelevant. If they convict him of having CP, and they do it without violating the Fifth, then kudos to them. The man isn't the issue, the rights are.

Re:My goodness

[dywolf]

to expound on my thinking because it s little unclear:
forcing him to decrypt his own hard drive: yes, 5th amendment applies
but contents of the hard drive that the cops (and not he) decrypteds: no, 5th amendment does not apply.

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

[GLMDesigns]

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

I tend to agree with you. I see encrypted data more as a Fourth A issue as opposed to a Fifth A issue.

[4th Amendment] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But even there the key clauses are "unreasonable searches" and "upon probably cause" and "describing the place to be searched." In this particular case it was court ordered (hence not an unreasonable search and with probable cause). The only issue in question is "describing the place to be searched." I, for one, agree that saying the hard drive and storage drives are acceptable "papers and effects". The only question would be "place."

Re:My goodness

[dywolf]

should encryption be somethng that is covered? its a grey area, one of those places where two competing ideas come into conflict.

i could see a case made for being forced to unencrypt the data yourself being a 5th amendment violation.

however, in this case, they decrypted a drive without his help, so i dont see how the 5th applies to an evidence found that drive. it should be admissable.

Re:My goodness

[gstoddart]

IE, we found stuff on one drive or in your apt or your browsing history, so your 5th amendment rights are void - give us the passwords.

Which is what the second judge said.

The 3rd judge came alone and said "hang on, hang on, that still violates his 5th amendment rights" and denied the order to decrypt.

Sorry, but you're wrong.

Re:My goodness

[dywolf]

"testify" means in a court or hearing.
under interrogation is different. saying you "take the 5th" has no real meaning. your better option is to say nothing at all, without the advice and presence of a lawyer.

Re:My goodness

[Steve_Ussler]

This judge is likely going to have to 'retire' soon.

Re:My goodness

[j00r0m4nc3r]

Yeah, better to just reply, "I was going the speed limit," and nothing more. If he has some proof to the contrary he can bring it up in court.

Re:My goodness

[Anonymous Coward]

Ummmm --- Muslim brotherhood is in power in Egypt. Muslim brotherhood heavily influencing events in Libya. Al Queda rebels fighting in Syria with our support. Islamists on the rise in other middle eastern countries.

Re:My goodness

[Budgreen]

I wish I had mod points. Finally someone who followed it close enough to understand whats going on.. they have browser info.. he went here and downloaded this onto the encrypted drive etc.. it's assumed to be CP but they can't prove it without decryption, barely enough to convict unless he gives them the evidence they need, I don't agree with the alleged actions but I agree with his rights to not incriminate himself.

Re:My goodness

[CrimsonAvenger]

It could be argued that being ordered to hand over documents and such has been a 5th ammendment violation for years, but that horse has already left.

Not quite.

There is a fundamental difference between a physical object (a hard drive, for instance) and something only you know (the password for the hard drive). The legal system can subpoena your physical object to their heart's content, but they can't require you to provide information held only in your head (so, for instance, if they knew the password to the harddrive was written down on a piece of paper stored in your safety deposit box, that's fair game, but they can't force you to tell them that's where the password is, nor can they force you to tell them the password).

Re:My goodness

[Anonymous Coward]

Disclaimer: I didn't waste my time RTFA...

Without further information, the child porn that the cops found after breaking decryption on one drive might be a single clip from a video made decades ago by a porn star who was, as it turned out years later, 17 at the time although she looked older..

Technically, yes, child porn. However, the entire VHS video from which the clip were taken are stored in "conveniently mismarked" boxes in storage units, attics, and garages across the nation. If this is all the cops have, it would be hard to get a conviction and they may be hoping to find some more compelling porn (young kids being forced to have sex with mature farm animals or something).

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:My goodness

[mrjimorg]

You're missing one little detail-
If you are on trial and you decide to testify, you cannot go though the line of questions from your lawyer, then decide to plead the 5th when the prosecutor appears. Either you need to plead the 5th and not testify in your trial, or you need to not plead the 5th and answer questions from both.
Lois Lerner, the IRS director went before Congress, read her prepared statement and made her side of the case, but before a single question was asked by Congress she pleaded the 5th. Like Cruise said, this violates the rules of pleading the 5th.

Re:My goodness

[mrjimorg]

There were multiple drives. They decrypted one on their own. They're trying to compel him to decrypt the others.

Re:My goodness

[parkinglot777]

if one day someone develop a machine that can read your mind and memories

Your assumption already exists but it is in a different form -- Polygraph. It is very similar to what you call "mind reading" but it can be manipulated or changed. A so called "mind reader" machine you are talking about will have a hard time (or even impossible) defeating the way humans convince/change/obscure their memory.

However, if you are talking about a new way of encryption that can be decrypted with several different keys but only one key will enable the content you intend to hide, then it would be more convincing. That may be a new encryption algorithm which is not discovered yet...

Re:My goodness

[xstonedogx]

What's his name now?

Re:My goodness

[Chowderbags]

I'd say it's way more like a suspected bookie that's writing down bets in code. Maybe you've cracked some of the code to figure out that there's a bet on one page of a book. Using that, you're trying to get the bookie to divulge his method of encrypting all the books found in his office. The question is whether the bookie has to give you a) the code b) decoded versions of the books or c) nothing at all.

Re:My goodness

[rahvin112]

Testifying before Congress is sworn testimony on the record. The transcript of that testimony can be used in a criminal trial against you and frequently has been used to convict people in the past. Only morons would help a political prosecution by testifying to ANYTHING on the record where someone has a political motive to see you prosecuted. Any attorney worth anything will tell you in such a circumstance to testify to nothing (without an agreement for immunity) because even items you believe are inconsequential can later be used to convict you.

I might remind you that Congress was discussing who would be going to jail, this would be a politically motivated prosecution with the congresscritters looking for a scape goat to take the fall. Both Lerner and her lawyer would have been idiots to testify to anything regardless of guilt.

Re:My goodness

[Blaisun]

I am not confused at all. The main difference to me is their ability to obtain with or without your consent. For material objects, they can issue a warrent, and by force take anything in your possession with or without your consent. Something locked in a lock box, they can break it open to obtain whats inside. They can break into safes etc. They can take the hard drive out of your computer, etc, etc, etc.... They should not be able to force you to participate in your own prosecution by providing any information whatsoever. You have the right to remain silent..........

Re:My goodness

[stdarg]

The man's whole dream for the Middle East went up in a puff of Arab Spring.

That's completely wrong, in fact al Qaeda claims some responsibility for the Arab Spring: http://www.telegraph.co.uk/news/worldnews/al-qaeda/8759968/Al-Qaeda-leader-supports-Arab-Spring-in-911-anniversary-video.html

New al Qaeda leader Ayman al-Zawahri voiced support in an internet video for popular uprisings sweeping the Middle East, saying Arabs are no longer afraid of the United States, ten years after the country was targeted by the militant network.

As for bin Laden himself: http://www.ft.com/intl/cms/s/0/a218eb16-9539-11e1-8faf-00144feab49a.html

Osama bin Laden was a surprising proponent of the Arab spring, according to documents found after his capture and released on Thursday.

In his last private letter written just a week before his death, he said the revolutions represented a “formidable event” and a turning point in the Arab world. Before the release of the 17 letters by the US government, the revolutions were viewed as a concern for bin Laden as they could cause instability and potential western involvement in the region.

That said, I wouldn't credit bin Laden with the victory. Their attempt to link 9/11 to the Arab Spring is a bit tenuous in my opinion, and I would give the Taliban more credit with the legitimization of America dealing with radical Muslim groups in Afghanistan than al Qaeda. Certainly our attempts to negotiate a peace with the Taliban must have made groups like the Muslim Brotherhood more confident that if they successfully took over, America would no longer come swooping in to save a Western-friendly dictator.

It's more like, bin Laden's dreams are being realized by others. He fought for these dreams but they weren't his alone. That's why it's not HIS victory.

"His" own people rejected his methods and goals.

I'm no expert on bin Laden but I doubt his goal was to get 100% of Muslims into al Qaeda. Bin Laden was a mujahideen and was fighting on behalf of other Muslims. It's like saying the goal of a general of the US army must be to get 100% of Americans into the army.

Re:My goodness

[rollingcalf]

At this point they apparently have enough to convict him for possessing child pr0n, but that's not their main goal.

Their main goal is to obtain a precedent-setting decision that they can use to force other people in the present and future to decrypt their hard drives.

Re:My goodness

[kscguru]

It's hiding in plain sight, in the part of the Fifth Amendment most armchair lawyers don't bother reading:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Due process of law HAS been observed. The current state of law is that if the government can prove you knew something in the past, they can compel you to disclose what you knew. In this case, if the government can prove you used to know the password (which, in this case, they could not originally but could after the FBI decrypted one drive), the government can compel you to reveal the password.

The Fifth Amendment does not protect the password (it's just a sequence of characters); the amendment protects the "testimonial" aspect that you knew that particular sequence of characters was significant. Once that fact is entered into evidence through some other means, the Fifth Amendment's "due process" requirements have been satisfied.

Re:My goodness

[Nemyst]

Actually, your example with 1984 and Animal Farm is precisely the issue. We make kids read them, but not think about them. I was made to read Animal Farm in high school, but after that we were asked a few largely factual questions about the book, analyzing it as a purely fictional work, and then we moved on. We didn't make parallels with politics or society. We didn't analyze the metaphors. We just read it as any other book.

The big issue these days is that school is formed of check boxes. There's a bunch of things that are on a todo list, and once they're "done", they're off the list, with no regards for what the point of doing it in the first place actually was. Need to teach about trigonometry? Just show the functions, done. Don't try to explain what they relate to, how they work, what interesting things you can make out of them. Need to teach about politics? Bring up a few important figures, get students to read biographies and regurgitate the data in there on a test, done. It's not learning, it's ticking boxes.

Re:My goodness

[rollingcalf]

"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."

Those box and lock analogies don't really apply to encryption. Every byte of data is already available to the police, it's just that it's not in a form where they can discern any meaning from it. Decrypting isn't unlocking a safe, it's transforming the contents of an already-open safe into something the police can interpret.

The 5th amendment protects you from having to help the police interpret the evidence against you or give them information from your brain to reveal your association with the evidence. Having to decrypt the drives would both be helping the police interpret the data and effectively admitting to ownership or control of the data.

Re:My goodness

[gstoddart]

That's wrong. It's not a simplification, it's plain wrong. He's not guilty until tried.

Well, when I file my legal brief I'll be sure to get that right, but for purposes of explaining to the person I responded to, it will suffice.

From TFS:

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.

So, maybe not 'guilty', but "we have evidence, so you're no longer entitled to your 5th amendment rights" ... glad we cleared that up.

Re:My goodness

[Demonantis]

To support you, that is exactly how warrants work. You need a degree of proof to issue a warrant to collect more evidence. You progressively develop more proof of the crime and the defendant progressively looses protection as it becomes more apparent that they committed the crime.

Re:My goodness

[rollingcalf]

"Al Capone was convicted on the basis of an "encrypted journal" that the government interpreted."

Did the government interpret it, or did they force Capone to interpret it? There's a big difference there.

The 5th Amendment doesn't stop the police from trying to brute-force the encryption key until they find it. The protection is against forcing you to interpret the data for them by supplying the password from your brain.

Re:My goodness

[Dr. Sheldon Cooper]

What's the name of his other leg?

Re: My goodness

[MouseTheLuckyDog]

"so it made perfect sense"

Bullshit. She stated first that she had done nothing wrong and committed no crime, either that is a lie or asserting the fifth does not apply, there are no other choices. Finally the really important part is finding proof of wrongdoing of those up the chain of command, and again the fifth amendment does not apply in such testimony.

All I can say is that I hope that you never have to appear in a court. If all your logic follows that here, you'll be put away for life.

People appearing before Congress can and do assert their fifth amendment privileges. The most notable case is Oliver North in Iran Contra asserting his rights.
IIRC correctly he was granted immunity and then testified. Which is why later court cases were overturned.

In the case of Lerner there is a possible exception. People can waive the right. For example if a defendant testifies, then he can no longer assert his right when cross examined. The rule of thumb is that a person who has testified has waived their rights to not answer questions that have been "made relevant" by their previous testimony. There are however subtleties. That's why an ex-prosecutor was the first to suggest she waived he rights. He knows the rules fairly well.

I however would think that a person who makes self serving statements in front of Congress has waived their right with regard to anything made relevant by their statements.

Re:My goodness

[Obfuscant]

IE, we found stuff on one drive or in your apt or your browsing history, so your 5th amendment rights are void - give us the passwords.

Which is what the second judge said.

No, actually, it isn't. He was ordered to enter the passwords to decrypt the data. He wasn't ordered to reveal the passwords to anyone.

Re:My goodness

[MouseTheLuckyDog]

Actually it's more of "open the lockbox or we will break it open and ruin the box in the process". Rather than "you have to open the box".

Re:My goodness

[cold fjord]

Sarah, She Wolf of the GOP

Re:My goodness

[fnj]

Whether or not Feldman is toast is irrelevant. If they convict him of having CP, and they do it without violating the Fifth, then kudos to them. The man isn't the issue, the rights are.

You sure do hand out kudos very readily. You left out "AND if he actually did have CP, AND if anyone was actually harmed by HIM in connection with the CP he possessed." I would be fairly generous in what I consider harm, but simply looking at pictures? Not in this world. That is one step away from "feeling something" from a glance at a stranger glimpsed in public.

(1) They thought he possessed CP and tried to make him admit it or prove his own innocence. He refused. The basis of law enforcement does not require the innocent to prove their innocence. Even the UN Declaration of Human Rights affirms that. Then before you can say Jack Robinson, Lo and behold! Look what we found! This proves he possessed CP! You will excuse me if I doubt the authenticity of what they "found".

(2) Simple possession of CP is a thought crime. To burning hell with anybody anywhere involved in punishing thought crimes; and to anyone who does not have a problem with others punishing thought crimes, I consider you wrong on a critical point of elementary morality.

(3) If they think he did actual harm to anyone by doing more than simply possessing CP, let them prove that without spitting on his unalienable rights. I think there is more to this case than is apparent, and I think we have a very lazy and arrogant law enforcement apparatus here.

Re:My goodness

[fnj]

Even if that is not so, I am afraid people would misinterpret the clause that says "or ... in time of ... public danger" to cover just about anything. It is as dangerous as the commerce clause. Both can be interpreted by enemies of liberty to allow jackboots to nose into just about anything.

Re:My goodness

[archont]

Bah, that's old stuff. A polygraph is just bells and whistles, a theatre meant to scare the perp. But I've got good news, soon justice will prevail, we have a new toy on the horizon!

It's fMRI, which detects which areas of your brain are active in realtime. This means when the interrogation specialist shows you a picture of a woman, you don't even have to answer whether you recognize her - if you do, the specific regions of your brain light up. If you're asked a question and you're lying, you are using different parts of the brain to compose the answer than those used to recall visual data. It's not binary, it does vary slightly from person to person, but no matter how good of an actor you are, you're not going to rewire your brain.

Hell, with a little bit of resolution it will be entirely possible to pluck the password out of the communist's/terrorist's/pedophile's brain, letter by letter. Is the first letter of the password A? Is the first letter of the password B?

Best thing, you won't even have to answer anything for it to work! No talk of self-incrimination other than completely voluntarily brain activity.

Re:My goodness

[fnj]

No offence, but how does it feel to be deciding how many angels can dance on the head of that pin?

Re:My goodness

[mark-t]

But the question that comes to immediately to mind is that since he did not provide that decryption key himself, what evidence is there that the people who allegedly decrypted some of his drives did not plant such incriminating evidence there themselves? Especially since they seemed to want to use its presence as a basis to get him to decrypt more drives.

Re:My goodness

[mark-t]

A person who commits a crime may not legally be recognized guilty until tried, but that doesn't mean they aren't guilty of doing what they did.

Any more than a person who didn't commit a criminal act, but ends up being found guilty in a court is actually guilty of the crime that he was accused of.

Re:My goodness

[Jane Q. Public]

"By the way, in case somebody doesn't understand what the 'fifth' is..."

Right on one point. Wrong on two others:

"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."

It makes perfect sense. It doesn't just apply to trials, it applies to everything Government does. And under current law, Congress can require you to tell the truth in testimony before them, under penalty of perjury. But that law does not trump the 5th Amendment. Thus Lerner leaned on the 5th Amendment, so that she doesn't have to lie or face perjury charges. (I make no judgement about whether she is guilty of what she is alleged to have done. I'm simply saying that the 5th Amendment has legitimate standing in her situation.)

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

It most DEFINITELY is. This is the principle -- and legal reasoning -- that prevents torture and government coercion today.

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.

Yes, it is.

A "product of the mind" (in the Supreme Court's words), such as a password, can "incriminate" you (show that you are a criminal), if the government doesn't already know that you committed that specific crime. If they do know that already, then you are already incriminated, and you cannot incriminate yourself for that crime.

But if they do not know that, then revealing things via a password or other information stored in your head can result in incriminating yourself.

Therefore (and this legal precedent has a long and respected history): if the government does not already know that something illegal exists within encrypted data, the government cannot compel you to reveal the key to that data. Doing so constitutes a real and present danger that you will incriminate yourself.

That's why.

Note that this says nothing about whether the authorities can crack the encryption if they are able. There is no 4th or 5th Amendment issue in doing that, as long as they have probable cause. But probable cause is simply not enough justification to force violation of the 5th Amendment by revealing a password (or known location, or other "product of the mind").

In this specific case, having broken the encryption on one drive and found illegal material is not good enough. The government has to know "with reasonable particularity" (Supreme Court's words again) that illegal material already exists in the thing to be searched. Already knowing that he is a criminal is not good enough. They have to KNOW, in advance, that there is proof of criminality in those other hard drives first. Because what is in there might incriminate him for even worse crimes.

Re:My goodness

[cold fjord]

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

Your abacus must have suffered an overflow error. The cost of the war against Al Qaida and associates is a pittance of the total federal budget.

Medicare and Other Entitlements Are Crowding Out Spending on Defense

Defense spending is about 19% of the total budget. The cost of the war has varied considerably year to year, adding an additional roughly 15 - 30% to the baseline defense budget. On the other hand:

Analysis: Obamacare to cost $2.6 trillion over first full decade

... Total spending under the Affordable Care Act will reach $2.6 trillion over its first full decade, according to a Senate Budget Committee analysis, which was based on Congressional Budget Office estimates and growth rates.

The Affordable Care Act will cost at least twice what the war is costing. If the road to ruin is the incremental cost of the war over the baseline defense budget, then we need to stop implementation of the Affordable Care Act now.

Entitlement Spending Will Nearly Double by 2050

Re:My goodness

[puff3456]

The Fifth Amendment does not protect the password (it's just a sequence of characters); the amendment protects the "testimonial" aspect that you knew that particular sequence of characters was significant. Once that fact is entered into evidence through some other means, the Fifth Amendment's "due process" requirements have been satisfied.

That interpretation is absurd; all of ones testimony is "just a sequence of characters" yet one is protected from having to provide it by the Fifth Amendment. Further this is not a due process issue, due process requirements have been met prior to the confiscation of the hard disks and other items. It is only after which they have been taken that the investigators determine they cannot make anything ineligible from the data which they have lawfully taken. To demand that the suspect interprets the data (or provides a key by which another individual could interpret it) for them in such a way as to potentially incriminate himself is outside the scope of their authority. This is specifically what is protected by the applicable portion of the fifth amendment.

The issue people are having with this is related specifically to their understanding of data on a hard disk. Because it is not tangible in the same way as stack of photos people have a hard time determining how to apply past precedent. Being required to provide a key which allows for the understanding of data is the equivalent of a defendant in a murder trial being required to state where the presumptive body is buried. Remember, the suspect has complied with the warranted requests for the hard disks themselves, he is under no obligation to help the investigators make sense of what was taken. If the encryption key was written on a piece of paper and it was discovered by the police there would no longer be any issue, in the same way as if a map of where the body was buried had been found.

Re:My goodness

[FuzzNugget]

I agree, but good luck with that. They're too busy watching Dumb Bimbos of Retard Valley.

But beyond that, you'll find that many people (especially those religiously enamored) are pretty much incapable of both pragmatism and contemplating consequences. They are under the illusion that law is good and moral and right because they've never had the unfortunate experience of being on the wrong side of it (yet) while being morally and technically correct in every reasonable way.

It's a *long* journey to getting most people to disillusion themselves from this false sense of legal stability. That, and, "I'm not interested in politics, I have a life." But it would be a lot less necessary for someone to dedicate a lot of time to politics if everyone got a little involved.

Re:My goodness

[MightyYar]

I'm no expert on bin Laden but I doubt his goal was to get 100% of Muslims into al Qaeda. Bin Laden was a mujahideen and was fighting on behalf of other Muslims. It's like saying the goal of a general of the US army must be to get 100% of Americans into the army.

What I mean is, you don't have this mass movement towards Osama bin Laden's style of Islam. Sure, he'd be thrilled that the Brotherhood has as much influence as it does in Egypt - but he'd be less enthusiastic about how they went pragmatic once they actually got some power.

Re:My goodness

[ImprovOmega]

Regardless of your opinion on the matter, possession of child pornography is against the law in this country. The idea being that possession of it is contributory in nature to the furtherance of production - mostly on the theory that you or someone else down the line paid for it. It's treated in a similar fashion to possession of controlled substances. The important thing here is the preservation of constitutional rights. If they can convict him without violating that then I'm perfectly okay with him going to prison. I'm not okay with them landing a conviction after violating his rights. Because a violation of one person's rights is a violation of all of ours.

Re:My goodness

[Hatta]

You assume spending to keep citizens alive has the same economic impact as spending to make non-citizens dead. That's clearly not the case.

But you do have a point. There's nothing in the ACA to address costs of care. The ACA should be repealed, and replaced with single payer. But since we can't do that, I'll take universal coverage any way we can get it.

Re:My goodness

[MightyYar]

It's a bit simplistic to say they are "in power". Anyway, how would Osama bin Laden have liked their adherence to the peace treaty with Israel? If the Muslim Brotherhood represents extremism in modern Egypt, then the West can rest quite comfortably because they seem fairly pragmatic.

Re:My goodness

[fnj]

What about the right not to have your private thoughts and what you put into your own body presumed, regulated and punished?

Making arbitrarily selected groups of people move to the back of the bus and use segregated drinking fountains and restrooms used to be perfectly OK with US law, too.

Re:My goodness

[ImprovOmega]

The first question is the only one that matters, and you don't even have to ask it: If you're being held/detained, then they have to read you your rights (unless you're a terrorist apparently).

Not quite. If you're arrested they have to read you your rights. If you're being detained (which they can do without transporting you while investigating if they do in fact need to arrest you) then you still have the right to remain silent, but they have no obligation at that point to inform you of that right. This is entirely separate from a consensual encounter in which you are free to go, though they'll usually game those so that you are free to go by the letter of the law but you get the distinct impression that you are not.

In the instant discussion however a traffic stop is technically an arrest with immediate release on promise to appear (for which they also do not need to Mirandize you). You are not free to go if you are pulled over, and leaving without the officer telling you that you can go is resisting arrest, a vastly more serious offense than a traffic violation. Also signing the ticket is not an admission of guilt, it is a promise to appear only. In all cases though you are better off not engaging the officer in conversation, and only providing the information you are required by law to provide. Though again for traffic violations it's usually a fine and maybe traffic school/points on the license - an inconvenience really, not something serious like potential jail time. Just whatever you do do not consent to a search of your car.

Re:My goodness

[Enigma2175]

Analysis: Obamacare to cost $2.6 trillion over first full decade [dailycaller.com] ... Total spending under the Affordable Care Act will reach $2.6 trillion over its first full decade, according to a Senate Budget Committee analysis, which was based on Congressional Budget Office estimates and growth rates.

The Affordable Care Act will cost at least twice what the war is costing. If the road to ruin is the incremental cost of the war over the baseline defense budget, then we need to stop implementation of the Affordable Care Act now.

If the ACA costs 2.6 trillion then it is still less than the estimated cost for the Iraq and Afghanistan wars. A recent Harvard study estimated the cost of the two wars at between 4 and 6 trillion dollars: http://articles.washingtonpost.com/2013-03-28/world/38097452_1_iraq-price-tag-first-gulf-war-veterans. One could certainly make the case that the ACA provides more benefit to the American people than the wars have.

Re:My goodness

[Obfuscant]

All they have is the names now but no pictures.

Actually, they have "numerous" files, not just names.

File names are not going to be a solid case, they need the pictures themselves. So they suspect the pictures are on the other drives.

Actually, they suspect OTHER pictures are on the other drives. Perhaps they also suspect that those other pictures might help identify anyone who was victimized by the photographer, or help lead them to the photographer himself. In any case, there are good reasons to get access to those images.

Since they haven't arrested him that tells me they don't have a solid case.

The only thing you know from the fact that they haven't arrested him yet is that they haven't arrested him yet. You don't know they won't, and you don't know they don't have any evidence. They may very well be waiting until they have all the ducks lined up so they can go to trial quickly. Or they may be letting the guy sweat a bit, watching him to see if he leads them to anything else. There are examples of arrests that come a year or more after the crime, especially if it is the result of a long-term sting operation. You could apply your "they don't have a case if they haven't made an arrest during an ongoing investigation", but you'd be just a wrong then as now.

Any charges they can come up with to force him to decrypt those drives would be nothing compared to what he would get if they did find child porn on those drives.

They can already come up with possession of CP, and I'm not sure that those charges would be called "nothing", especially compared to "possession" based on files from another disk.

Re:My goodness

[Obfuscant]

I'd regard the system more highly if they actually concentrated on catching and jailing more child _pornographers_. e.g. the ones creating all the child porn. ... If he did pay for the porn, then follow the money and jail those involved too.

And information from the still-encrypted disks may help them find the people creating or distributing it, or who he paid to get it. That's why it is relevant to get that information.

Re:My goodness

[cold fjord]

I think you misunderstand. The ACA cost will be at least $2.6 trillion for the first 10 years, whereas that $4-6 trillion is an estimate of what the total cost of the war will be over future decades. Two decades of ACA gets you well into the cost of the war, three decades and you're past it. That is assuming the current estimates are on target. It isn't looking good.

The 9/11 attack resulted in an estimated $100 billion in damage to the American economy. That is more than the cost of additional war funding in several years. If civil aviation had collapsed as a result of 9/11 alone, or with follow-on attacks, a genuine possibility, it could have been far worse. Al Qaida was planning multiple follow on attacks. Various plots have been interrupted that were intended to be as bad or worse. There is no way that 9/11 would have been ignored.

The 9/11 attack killed about as many Americans as the attack on Pearl Harbor. How do you think ignoring the attack on Pearl Harbor would have worked out? No US aid to the UK, and Soviet Union. Would they have fallen or worked out a separate peace? How do you think that world would have worked out for the American people?

Al Qaida was training thousands of terrorists per year and sending them around the world to engage in Islamic extremist insurgencies. If they hadn't been disrupted, if the US hadn't assisted other government, it is unlikely the results would have been good over time.

National defense is a constitutional responsibility of the US federal government. Healthcare is not. In the world in which we live, giving up defense to provide healthcare is likely to mean eventually you are likely to have neither unless you have a strong benefactor to protect you. The US has played the role of benefactor to Europe since the end of WW2. Who will protect America if it gives up its own defense?

Re:My goodness

[Tharkkun]

Ummmm --- Muslim brotherhood is in power in Egypt. Muslim brotherhood heavily influencing events in Libya. Al Queda rebels fighting in Syria with our support. Islamists on the rise in other middle eastern countries.

Yet more Al Qaeda have died than the americans they are fighting so they are losing.

Re:My goodness

[shutdown -p now]

The purpose of al-Qaeda fight is not to kill Americans, but to establish a Caliphate in "traditionally Muslim lands", starting with Middle East. Killing Americans is a mean to that ends, but it's not a good yardstick for their progress.

The irony is that today, US is actually directly helping al-Qaeda achieve its goal in Libya and Syria...

Re:My goodness

[shutdown -p now]

The difference is that spending money on healthcare actually results in a marked improvement in life quality for your citizens. Spending money on bombs and missiles that are used to strike on terrorist donkeys and tents in Afghanistan is money wasted.

Re:My goodness

[KGIII]

From reading another article I understood that they didn't find any porn at all but found evidence of searches and file names that were suggestive of them being child pornography. That seems to make more sense too when you look at the various motions, rulings, etc....

Re:My goodness

[shutdown -p now]

A judge initially said he was shielded from being required to decrypt due to the 5th amendment. After the police decrypted his hard drives anyway and found child porn, a second judge said that since they've already found stuff, he wasn't entitled to claim a defense against self incrimination. Basically said he would now have to decrypt because he was already guilty.

That's not how it went.

Originally, the judge said that 5A shields the guy, because the act of him decrypting the hard drive would constitute self-incrimination, as it would prove beyond a reasonable doubt his ownership of the encrypted contents, which was then not firmly established. So prosecution went and gathered sufficient evidence to prove that he is, in fact, the owner. Now that it it established, he can no longer incriminate himself by the mere act of providing access, so 5A no longer applies.

Re:My goodness

[Jockle]

but in my experience it's mostly just fact-learning

So are math classes and pretty much all the other types of classes in public schools. Should it be that way? No, understanding is important, but they teach people to memorize facts and procedures rather than teach them to understand why it is these things work/took place. Just another thing wrong with our abysmal public school system...

Re:My goodness

[shutdown -p now]

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

The exact interpretation of what it means to "be a witness against himself" is vague, and has changed over time.

When 5A was originally introduced in the Bill of Rights, its purpose was clear and simple: to prevent anything like Inquisition or Salem witch trials, i.e. torture to extract confessions that are then used to pronounce the defendant guilty, or the requirement to testify under oath that one is innocent, and taking the refusal to do so as admission of guilt (specifically used against Puritans in England). This was a common practice of the day, so Founders felt that an explicit safeguard against it was in order. However, back then it did not extend to providing evidence showing guilt, but only confessions.

It was not until Boyd vs US in 1886, that SCOTUS has extended this protection to also be compelled to provide "private papers" that may constitute evidence. Since then, there has been a lot of going back and forth on what exactly is "private", and what it means to provide. In particular, if the prosecution knows that the papers are there, but they're behind the lock, and only you have the key, can you be compelled to provide the key by a warrant? If it's a physical key, then the standing interpretation, so far as I know, is that they can do. But with encryption, where the key itself is information rather than material object, does providing it qualify as "testifying"? This is a murky area.

Re:My goodness

[KGIII]

Chain of custody... They decrypted a COPY of the data, cloning the HDD and working with that. Someone can repeat their work and see the same results. One of the first things they do is clone the drives which preserves the original for evidentiary reactions.

Re:My goodness

[shutdown -p now]

In reality, it is more complex, since the "key" is really knowledge

Note that the judge didn't order the defendant to provide the key. Rather, he ordered him to decrypt the hard drive, and specifically declared that the defendant should be allowed to enter the key unobserved, so that prosecution does not gain knowledge of it - specifically to counter any claims of self-incrimination based on disclosure of the key.

Re:My goodness

[shutdown -p now]

To also request documents, there must also be a knowledge that they both exist, and that they are in the possession of the person under investigation.

That's why the judge refused to issue an order compelling the guy to decrypt until prosecution provided sufficient evidence to prove that the hard drive is indeed owned by that guy, and that it contains CP.

Re:My goodness

[KGIII]

Another important thing is that few people actually know what freedom is. They confuse liberty with freedom quite frequently (more often then not it seems) and think the words are interchangeable. Age seems to matter but you have to look for the older people to really see the difference as it has been this way for a long time. I am NOT sure and don't really have anything other than a guess here but I suspect it has something to do with schools no longer teaching Civics and teaching Social Studies instead. Like freedom and liberty, the two are not the same.

Re:My goodness

[cold fjord]

The US already spends money on healthcare. The current law isn't likely to do much to improve outcomes for the general population It may result in some improvements for a small minority, and make care for a much larger percentage much more expensive.

Democrats' New Argument: It's A Good Thing That Obamacare Doubles Individual Health Insurance Premiums

In fact, the average 25 and 40-year-old will pay double under Obamacare what they would need to pay today, based on rates posted at eHealthInsurance.com (NASDAQ:EHTH). More specifically, for the typical 25-year-old male non-smoker, the average Obamacare “bronze” exchange plan in California will cost between 64 and 117 percent more than the cheapest five plans on eHealth. For 40-year-old male non-smokers, it’s between 73 and 146 percent more.

You also might want to look into the epidemiology of truck bombs. They can have a significant negative impact on the health of a community, and there have been a fair number of attempts by extremists in the US since 9/11. One of them was by a member of the Taliban.

Yazidis Live Among Reminders of Deadly Attack

The death toll from 9/11 attack was ~ 3,000. It resulted in approximately $100 billion in damage to the US economy. That is more that the incremental cost of the war to the US defense budget in several years, and half of the cost of implementing the Affordable Care Act per year once it is in full force.

Re:My goodness

[Enigma2175]

I agree that national defense is valid expense for the Federal Government, but the US seems to take it too far. Why can every other country in the world manage to spend less on their defense than the US? The US spends many times more than other countries, sometimes an order of magnitude more. The military-industrial complex has grown much too large and has become a large drain on our resources.

Yes, the figure for war spending I quoted is over several decades, but we have already spent at least 1.5 trillion on the wars, all of it deficit spending. I am unable to find a corraborating source for your 2.6 trillion figure, the only other article I found referenced the Senate Budget Committee (republican members) http://www.budget.senate.gov/republican but I could find no reference to this material on their site. I would be more inclined to believe the CBO than a partisan committee, and the CBO says its projections have not changed very much in the years since the passage of the legislation (http://www.cbo.gov/publication/43104). Notice the net budgetary impact graph at the bottom of the page, It is projecting the effect of the legislation is a reduction of the deficit in contrast to the war spending which only added to the deficit. Not only are we paying for the wars now, we will be paying for them far into the future. At least when we pay for health care each year we get something back for our money, any benefits from the wars will be long gone by the time we pay for them.

National defense is a necessary part of a nation-state, but how did attacking a country that had nothing to do with 9/11 and didn't pose an immediate threat (false claims of WMD notwithstanding) promote the security of the US? A major impetus behind the 9/11 attacks was the previous foray into Iraq and our backing of the House of Saud, our current foray into Iraq will no doubt have similar consequences in the future. You're welcome kids!

In the world in which we live, giving up defense to provide healthcare is likely to mean eventually you are likely to have neither unless you have a strong benefactor to protect you. The US has played the role of benefactor to Europe since the end of WW2. Who will protect America if it gives up its own defense?

Nobody is saying the US should give up its defense, but maybe it should just defend itself rather than providing defense for foreign countries. Also, calling pre-emptive attacks "defense" is massively stretching the meaning of the word.

Re:My goodness

[Pseudonym Authority]

I read the request the last time this case came up, and no, that is not what they had. They got into the drive that had the eMule cache and found in the log that he had download file like ``toddler boy raped.mpg'' and dozens of other quite specific filenames.

Re:My goodness

[gmanterry]

Here, let me fix the analogy for you. Your criminal doesn't shoot the cops, he infects them with the black plague. Two weeks later, all the cops are dead. Now, who won? By any measure, Osama won on 9/11. I saw it the week after. Our response was wrong then, and has been ever since. Amerika is dead, just waiting on the autopsy.

Amen!!!

Re:My goodness

[msobkow]

I was specifically thinking of crypto containers rather than individual encrypted files. I think a crypto container should be considered the same as a safe, but a crypto file should be considered as a code. It's a fine line distinction, but I don't believe they should be considered as equivalent.

Thus whole-drive encryption would be considered as a safe containing the protected documents.

Re:My goodness

[antdude]

Tina Fey is a funny and attractive Sarah Palin wannabe! :P

Re:My goodness

[Galilee]

You are right on. My high school social studies class taught us that Upton Sinclair's "The Jungle" was an example of muckracking journalism. We didn't read the book, but only a short paragraph or two about the unsanitary conditions in the slaughterhouse. I decided to read the book for myself a few years later, and that's when I realized the real story was about how the workers were exploited as badly as the cattle. The bigger story about workers rights was completely ignored in high school.

Re:My goodness

[Rich0]

Sure, there is no question that the police have the power to execute their warrant, and while I see no constitutional requirement to cooperate I can easily see how they could arrest you for interference.

Re:My goodness

[Rich0]

Due process of law HAS been observed. The current state of law is...

That isn't really a valid interpretation, even if it is the one courts operate under.

The law is subservient to the constitution, not the other way around. If congress passed a law stating that cops could write their own warrants without cause as long as it was a sunny day, that wouldn't mean that due process is being followed. Due process is the kind of process envisioned by the drafters of the constitution and its amendments. Anything else is just process, and not "due process."

What's the point of having a constitution if all that it takes to bypass it is have a law passed?

Re:My goodness

[Zbsidian]

.............. in spite of that, you permitted Bush to complete his first term, and stranger still, chose him for a second term, which gave him a clear mandate from you - with your full knowledge and consent- to continue to murder our people in Iraq and Afghanistan.

Then you claim to be innocent! This innocence of yours is like my innocence of the blood of your sons on the 11th - were I to claim such a thing. But it is impossible for me to humor any of you in the arrogance and indifference you show for the lives of humans outside America, or for me to humor your leaders in their lying, as the entire world knows they have the lion's share of that.

...Among them is the European thinker who anticipated the fall of the Soviet Union, which indeed fell. And it would benefit you to read what he wrote about what comes after the empire in regard to the United States of America. I also want to bring your attention that among the greatest reasons for the collapse of the Soviet Union was their being afflicted with their leader Brezhnev, who was overtaken by pride and arrogance and refused to look at the facts on the ground. From the first year of the Afghanistan invasion, reports indicated that the Russians were losing the war, but he refused to acknowledge this, lest it go down in his personal history as a defeat, even though refusal to acknowledge defeat not only doesn't do anything to change the facts for thinking people, but also exacerbates the problem and increases the losses. And how similar is your position today to their position approximately two decades ago. The mistakes of Brezhnev are being repeated by Bush, who - when asked about the date of his withdrawing of forces from Iraq - said in effect that the withdrawal will not be during his reign, but rather, during the reign of the one who succeeds him. And the significance of these words is not hidden.

2007 Video Message transcript - http://counterterrorismblog.org/site-resources/images/SITE-OBL-transcript.pdf

According to Bush, this proves how "dangerous" the world is. And therefore USA has to invade Afghanistan, Iraq - kill innocent civilians and journalists and bomb people who live in fuckin caves. Years after 9/11 this video gets more coverage in Fox News than the whole of Arab media. Analysts discuss the impact of the video on the stock market!! Bush has a far more "We will destroy the great satan! BRING IT ON! " vibe than Bin Laden.

Re:My goodness

[ChainedFei]

The United States at this time, largely, is Wile E. Coyote standing in mid-air as he chases after the Road Runner, having not looked down at it's situation as of yet...

Re:My goodness

[void*]

Your understanding that you have to be a suspect, or that you have to be on trial, is incorrect.

There was a case that went to the supreme court where a witness - not the person on trial, but a witness - took the fifth. The prosecution gave the witness immunity. The witness then testified, and none of the testimony was incriminating.

The defense brought this up on appeal trying to claim that because what the witness testified to was not incriminating, the witness should not have been able to take the fifth.

The supreme court ruled that the witness taking the fifth was fine. The standard was not that the person taking the fifth was the one on trial, nor that it was actually even a trial, nor that the person testifying was guilty or innocent.

I don't remember off the top of my head what the exact wording was, but it boiled down to whether or not the witness could reasonably think that truthful answers might be incriminating.

In this particular case, it was a murder trial, and the defense was that this witness was the one-armed man. It was entirely reasonable for the witness to think that the defense might attempt to ask questions for which truthful answers might be incriminating, despite the fact that the witness asserted innocence and when given immunity, did not actually give incriminating answers.

Re:My goodness

[void*]

There is no cross examination in a congressional hearing. There is simply examination (or something analogous to it). The elected officials ask what they ask. There is nothing analogous to cross.

Re:My goodness

[RockDoctor]

Where is the leader who can make this clear? Where is the leader who can offer hope?

You saw him this morning, in the bathroom mirror. Didn't anyone tell you?

Re:My goodness

[RockDoctor]

and finally receiving a quick and easy death just before the onset of old age, making him a martyr in the eyes of his followers.

Would torturing him to death through the US judicial system have been better in the long run?

(We can take it as read that if they'd got him alive, the injunction against "cruel and unusual punishment" wouldn't have lasted. Which may have been part of the un-written orders of the raid team - "make sure we don't have to ask that question of ourselves".)

Re:My goodness

[Lord Apathy]

The only thing you know from the fact that they haven't arrested him yet is that they haven't arrested him yet. You don't know they won't, and you don't know they don't have any evidence. They may very well be waiting until they have all the ducks lined up so they can go to trial quickly. Or they may be letting the guy sweat a bit, watching him to see if he leads them to anything else. There are examples of arrests that come a year or more after the crime, especially if it is the result of a long-term sting operation. You could apply your "they don't have a case if they haven't made an arrest during an ongoing investigation", but you'd be just a wrong then as now.

You do have a good point there, and this would not be the first time I've been wrong on such and assumption. I assumed that Zimmerman would walk at one point because the hadn't charged him with anything turns out the prosecution was just waiting for the ducks to line up.

Well sometimes when we assume anything we often end up looking like the first first 3 letters of that word.

Rights...

[Anonymous Coward]

How much cash you got? :/

Re:I hope the guy wins

[Anonymous Coward]

Yeah, I'm always thinking of the children... *drool*

The United Kingdom generously offers...

[Anonymous Coward]

...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.

Robin Shellow

[cffrost]

"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.

Re:Robin Shellow

[Black Parrot]

I'm sure the lawyer's motivation is pure as gold.

Re:Robin Shellow

[nickmh]

C'Mon guys. Give it up. There are truckloads of people joining all sorts of organisations every day that swear to uphold and defend the constitution. where are they? Where are the defenders? The constitution is under attacks from all fronts! It will fall. Nothing can sustain the sort of attacks that the US constitution and the rights it's supposed to protect and survive. It's just a matter of time!

Re:Robin Shellow

[Anonymous Coward]

There are truckloads of people joining all sorts of organisations every day that swear to uphold and defend the constitution. where are they? Where are the defenders?

https://news.google.com/news?ned=us&q=ACLU

Re:Robin Shellow

[ebno-10db]

She doesn't have to have a golden motivation to speak the truth. We're supposed to have a system of government that takes into account that almost no one has "pure" motivations. The people who wrote the Constitution and the Bill of Rights were realists, they knew that any system of government and rights that depended on "pure" motivations wouldn't work.

Re:Robin Shellow

[bill_mcgonigle]

Thank you for naming her. I came here to do the same. She deserves at least that much.

Re:Robin Shellow

[Hognoxious]

Lawyers are sworn to provide a competent defence to any accused person regardless of guilt or complicity in the acts for which they stand charged as long as they can afford the fees.

FTFY.

To play devil's advocate...

[Alioth]

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?

Re:To play devil's advocate...

[gnasher719]

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?

The same situation: If the police doesn't know for a fact that it is your safe and that you had access to it, and the fact that you can open it incriminates you, they couldn't force you. Imagine there's a gun inside that was used for a murder. A witness saw a person putting the gun in the safe but can't see who that was. The gun is wiped clean. It is without doubt the murder weapon, but there are no fingerprints on it that would prove who the murderer is. But by opening the safe, the police would have evidence against you - that's self incrimination. On the other hand, if the safe contents is evidence, like your phone which you used to record a video of you shooting the victim, then opening the safe is not self incriminating.

Re:To play devil's advocate...

[Anonymous Coward]

Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed?

A better question is should the accused be punished for not turning over the key? And the answer to that is no.

Imagine we had this: an accused, who knows nothing about this safe made from unobtanium with an unpickable lock. Yet all evidence suggests that they should have enough information to unlock it. No matter how much you punish them, they can never give up the key, but in time, they may decide that enough is enough, and simply confess to whatever crime they are being charged with. Now I don't know about you, but that is not the kind of world I want to live in. And if we are to keep things from reaching that point, we must defend the rights of douche bags to not decrypt information.

Re:To play devil's advocate...

[ImprovOmega]

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?

I lost the key a long time ago (I think it was destroyed in lava) and I forgot what was in there.

I forgot the password I used, it's been so long now. I don't remember what I put on there anymore.

Re:To play devil's advocate...

[Hognoxious]

It's not "must have", it's "might have". It's not absolute proof, or proof beyond reasonable doubt - not enough for a conviction. But it is probable cause, which is enough for a warrant.

It's like the police found clothing belonging to a murdered person in your car. In that case, why shouldn't they get a warrant to search your house?

Re:To play devil's advocate...

[Hognoxious]

The safe is in your house. Whose fucking safe is it?

As usual, rubbish article

[gnasher719]

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.

Re:As usual, rubbish article

[Nerdfest]

That assumes you have complete control over what goes on that drive as well though. Would the possibility of malware, etc, render that untrue, or irrelevant at least?

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.

Re:As usual, rubbish article

[wonkey_monkey]

You don't have to provide keys\combo for a safe, you don't have to open your door, and you don't have to give out your encryption keys to your hard drive.

But can you - should you - be charged with obstruction and/or held in contempt of your court if you don't?

When I read about this story before, I thought the sticking point was not "whether or not any of the drives had any CP" but "do the drives belong to the accused?" They were only able to establish that to a high degree of certainty after decrypting the first hard drive.

Re:As usual, rubbish article

[wonkey_monkey]

But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.

Which is, contrary to the impression this summary gives, what I thought the sticking point was before the decryption of the first drive - not the absence or presence of CP. Once they decrypted the drive, they were (or so I've understood) able to show that the drives did belong to the accused, which hadn't established before.

Re:As usual, rubbish article

[ultranova]

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.

Imagine that it's not your house but your mind. Are you required to let the police in - that is, testify against yourself? If so, the Fifth Amendment is meaningless. And if yes, how is that any different from the house example? After all, in both cases you are being ordered to actively assist in gathering evidence against you. And that is true in the case of being told to decrypt your hard drive, too.

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.

Re:As usual, rubbish article

[DeBattell]

I think hard drives should be considered as an extension of your brain, and thus as protected as the content of your brain.

Re:As usual, rubbish article

[garutnivore]

Your analysis is appreciated but, let's consider the following. I'm sure I have at least one old hard drive somewhere that I have effectively written off but I have not trashed for which I don't remember the encryption key nor have any record of the key.

Okay, so it *is* my hard disk but I cannot decrypt it. What then?

Re:As usual, rubbish article

[gnasher719]

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.

As you say, old data, old hard drives. It could probably be established that these files were not modified for many, many years, and that the old hard drives were not touched for many years, so your claim that you can't decrypt them would be reasonable. Or you might have purchased a used drive on eBay yesterday, which happened to be encrypted. Same thing. If the drives were connected to your computer, then it's hard to say you don't have the password.

Re:As usual, rubbish article

[gnasher719]

Imagine that it's not your house but your mind. Are you required to let the police in -

Your house and your mind are different things. That's why there are different laws.

Re:As usual, rubbish article

[Virtucon]

You're mixing the 4th and 5th amendment rights here. The police without a warrant can assert in some cases that you allowed them into your home or to search your car. You have to be explicit and deny them access. They of course can force access into a home if there's a fear of evidence destruction or lives are threatened, the courts have ruled on that many times but stopping you on the street, say in the NYCPD pat downs is a 4th amendment problem because they are seizing you (temporary detainment) and searching you without reasonable suspicion.

your last statement I think is a bit off though.

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.

Judges have this neat power of holding you in contempt of their orders. If you encrypted something on a device then it's reasonable for a judge to assume that you can decrypt it as well. The point of compelling you to provide the information, the key, is what goes against self incrimination and in this case, the feds, initially, couldn't decrypt the hard drives so they filed a petition to get the judge to compel the individual to help them by giving them the keys. That's information that's not in the open, it's in one's head usually (or if he was an idiot, written down in his desk drawer somewhere). This case, I believe, opens up not only the self incrimination aspect because the feds, initially only had a suspicion of breaking the law, he wasn't charged with anything and they just wanted to search through his data for evidence of crimes. If a judge under those conditions can compel you to give up your decryption keys, when you're not charged with a crime is unjust and a violation of our rights. Now if the Feds had other Child Porn people give depositions or testimony that said "I got the stuff from him" and they have a trail, Internet logs, e-mails etc. then I can see where the judge could compel and individual to give up the info. In that case if he still refuses to do so there's a nice jail cell available where he can sit until he does what the judge orders.

There was a case back in the 80s called the Wonderland Murders in LA. Part of that case involved a porn actor named John Holmes who was accused to be one of the murderers in that case. He was held in contempt for 110 days for refusing to cooperate with authorities or testifying. The guy was nuts, like keeping pet bugs while in jail but he never broke and even though there was other evidence that he was involved, he never was convicted nor did he ever give testimony. The police if they'd had his blood stained clothes or other evidence probably would have been able to get a conviction but in this case, without his cooperation they had no way of putting him away.

How is this similar? He had knowledge of what probably went on in these murders and did tell the authorities what he knew he would have probably been convicted of the actual crimes or conspiracy. The same thing IMO applies here with compelling you to give away your encryption keys to your digital information. You may have something incriminating there not related to what the authorities are investigating, but once you give away that information, i.e., decryption keys then whatever they find can be used as possible evidence against you. In this case, a judge has ruled again in favor of the now accused and his lawyer is going to push to suppress what was found. It's been done before when police obtain evidence illegally, without probable cause. Locking the door to your house, encrypting your data to me are the same thing, it's just that the cops don't have great locksmiths or door busters when it comes to the latter.

Re:As usual, rubbish article

[Anonymous Coward]

Honestly, given the status of technology and what people can do with it (both police & citizens), it's a bit silly for the police to have to admit that they don't have a case against this guy without him decrypting his hard drives for them. Really??? There was nothing else? No IP logs, no internet purchases, no confessions from conspirators? It may make their job harder, but so be it. The police need to do a better job up front, not clamour for the ability to infringe people's rights later because WE WERENT DOING OUR JOBS AHEAD OF TIME.

Re:As usual, rubbish article

[Anonymous Coward]

If the drives were connected to your computer, then it's hard to say you don't have the password.

I actually had an encrypted hard drive with forgotten key in my computer for years.
Theres was no reason to remove the old harddrive when I bought a new one and I didn't need the data so I eventually forgot the key.
Also, I think it is difficult to prove the last access time without decrypting the drive.

Re:As usual, rubbish article

[Rich0]

If the drives were connected to your computer, then it's hard to say you don't have the password.

Isn't the matter of whether you know the password or not a matter of fact, and therefore a matter of a jury decision? My problem with contempt of court in general is that it is a punishment for a crime without a trial. The crime is ignoring the directives of the court, and the punishment is lifetime imprisonment, unless the judge gets bored and lets you out sooner (so it is arbitrary as well). Your guilt is determined by the judge who witnessed and charged you with the crime. At no point is a jury of your peers involved, even though the sentence might be harsher than just about any crime short of premeditated homicide.

Think about it this way. If you got angry with the judge's ruling, managed to run up to the bench without being tackled by the bailiff, and managed to break the judge's neck in a moment of passion, chances are you wouldn't get more than 10-20 years in prison. However, a reporter who refuses to divulge their sources or divulge a decryption key for their hard drive can spend 50 years in prison. How does this make any sense?

Re:As usual, rubbish article

[Kjella]

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.

Ah, but the same logic would apply further to objects and compartments as well, for example just recently some students here found a secret crawlspace used during WWII that nobody was aware of, not even the owner. Right now I rent an apartment where some things belong to the landlord, if you found a lockbox hidden in one of them it wouldn't be mine. Maybe you have an on-and-off partner that doesn't formally live there but who has things stored at your place and that you let use your computer. Maybe you're the victim of a conspiracy and the evidence is planted there. Granted, you're chasing slivers of reasonable doubt here but by compelling you to decrypt it they force you to revea it with certainty.

Re:As usual, rubbish article

[SecurityTheatre]

There is no practical means (that I know of) to determine when the last time an external drive (that is full-disk encrypted) was accessed.

Do you know something I don't?

Re:As usual, rubbish article

[phorm]

Ditto. I have some old drives around that likely have various encrypted items. I'm not even keeping them for the data. Sometimes if I build a system that needs a lower-capacity drive they could be reformatted, and if not that then at least they've got some useful magnets in them that I can take out.

Re:As usual, rubbish article

[IndustrialComplex]

I have a computer at my house which has internal HDDs that have encrypted files, encrypted partitions,and some drives are completely encrypted. The computer is operational, and the drives mount/boot and are viewable via the OS.

I have no clue what the keys to those encrypted drives/files might be, even though the drives are in use. How is this possible?

1. I wanted to learn how encrypted files behaved. Could I just use the same key on an outer volume and hidden volume? Could I just copy the file or image to a different computer, install the encryption SW and open the files there? What if I filled the entire outer volume, would it overwrite the inner volume?
2. I wanted to learn how full disk encryption would behave if I installed an OS on it. How hard would it be? What does the disk look like when not encrypted? Did it have a clear formatting, or did it show up as unformatted space, etc.

So I created a lot of variants of encrypted containers, and recorded a WAV file of my voice along the lines of, "This container is for storing my financial info in a standalone encrypted file." "This is a test of full disk encryption for an OS.", etc...

Another contained a massive WAV file that I just left recording ambient noise until it exceeded the capacity of the encrypted container so I could watch how it would fail and if it would impact the data on the hidden volume.

I've long forgotten the keys to those files/drives, and I've never gotten around to deleting some of the encrypted containers or formatting the drives. Some were just 40GB drives which aren't useful to me anymore and I don't feel like opening up the case to pull them out. So there they sit, adding a few cents to my utility bill, useless and forgotten, but still encrypted and on my computer.

I'm quite sure that I will continue to find 'odd' WAV files which have been saved into my backup folders accidentally and will be discovered by my grandkids when they root through my records 50 years from now.

The point is, it's quite easy to have encrypted volumes sitting in active computer systems which you literally have forgotten both the key and the fact that the volumes exist in the first place.

Re:As usual, rubbish article

[Golddess]

Calling them an extension of the brain may confuse some people, make them think it's something "new" that needs "special laws". Just call them very dense notebooks.

Now if it turns out that someone can be punished for not teaching the government the secret language the notebook is written in, then I may change my mind. But it would be to eliminate that action when it comes to both hard drives and notebooks, not to treat hard drives differently from notebooks.

Re:As usual, rubbish article

[ultranova]

Your house and your mind are different things. That's why there are different laws.

Your house and your encrypted byte stream key are different things too, but that didn't stop you from using the latter as an analogy for a former. Furthermore, my argument is not based on them but you: you are forced to help the prosecution to make his case against you, in other words, to incriminate yourself.

Furthermore, the law under the consideration here is the Constitution. Even if there were laws attempting to force you to aid in your own prosecution, the Fifth Amendment would trump them. As such, the only question is whether decrypting your hard drive could be incriminating - which, of course, it could, since else the prosecutor wouldn't be asking for it.

Re:As usual, rubbish article

[fnj]

I think you would be very hard-pressed indeed to find anyone (at least in the US) who has ever been incarcerated for 50 years for contempt of court. I should be very much interested indeed if you could find such a case. In fact I should be very interested to learn the longest such period on record.

In Chadwick v. Janecka, a US Court of Appeals did rule that poor Chadwick could be held INDEFINITELY under federal law, for refusing an order rendered in a mere civil trial. He was, in fact, incarcerated for no less than 14 years before being eventually freed by a state court.

Re:As usual, rubbish article

[Adrian Lopez]

Key disclosure law:

The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves, and there is currently no law regarding key disclosure in the United States. However, the federal case In re Boucher may be influential as case law. In this case, a man's laptop was inspected by customs agents and child pornography was discovered. The device was seized and powered-down, at which point disk encryption technology made the evidence unavailable. The judge argued that since the content had already been seen by the customs agents, Boucher's encryption password "adds little or nothing to the sum total of the Government's information about the existence and location of files that may contain incriminating information."[18]

In another case, a district court judge ordered a Colorado woman to decrypt her laptop so prosecutors can use the files against her in a criminal case: “I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Colorado U.S. District Judge Robert Blackburn ruled on January 23, 2012.[19]

In United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment.[20][21]

The difference between the two rulings is in previous cases, the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment. In the Colorado case, the police had intercepted a telephone conversation in which the defendant, Ramona Fricosu, acknowledged her ownership of the laptop and alluded to the existence of incriminating documents in the encrypted portions of the hard drive. The government successfully argued that this precluded her from claiming Fifth Amendment protection, since she had already acknowledged the existence of incriminating documents in the case. The Tenth Circuit let that decision stand, though it may consider the issue again later in the process.

In the Florida case, on the other hand, the government lacked any specific evidence about the contents of the encrypted hard drives. A forensic expert acknowledged it was theoretically possible that the drives, which were encrypted using TrueCrypt, could be completely empty. Hence, forcing the suspect to decrypt the drive would be forcing him to reveal whether any relevant documents exist, which would be inherently incriminating.

Re:As usual, rubbish article

[Smurf]

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.

According to that logic, if the police think that you have physical evidence of a crime you allegedly committed but they don't know where you keep it, then forcing you to tell them where to find that evidence (i.e., providing them with access to evidence) is not self incrimination and therefore not covered by the Fifth amendment, right?

Fascinating.

Re:As usual, rubbish article

[Rich0]

I think you would be very hard-pressed indeed to find anyone (at least in the US) who has ever been incarcerated for 50 years for contempt of court. I should be very much interested indeed if you could find such a case.

Since contempt isn't a "crime" per-se, it doesn't have statues, or sentencing guidelines. 50 years is a bit of hyperbole - even most life sentences don't end up being that long simply as a result of life expectancy. However, as you point out the "sentence" is indefinite. If it were 30 years you could at least say that on some date you'd be able to look forward to freedom.

It's not the case

[dutchwhizzman]

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.

You don't have to open the door

[dutchwhizzman]

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.

Re:You don't have to open the door

[gnasher719]

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.

That's a good theory, but very unlikely that it was ever tested in court. Because as the situation stands, the police isn't going to court, they are just coming in to your house by force and all you got for not opening is a smashed door. What would happen if the police tries to get in without any success, because you happen to have a twelve inch steel door? In that case, I would think they would go to court and you would be ordered to open the door.

Re:You don't have to open the door

[Anonymous Coward]

That's a... rather optimistic view of the police. If police apply force and that force is sucessfully rebuffed, history suggests they will just continue applying progressively more force. If the police try to break in my door and fail, I pretty much assume I'm not leaving that situation alive.

Re:You don't have to open the door

[skine]

Let's assume that someone owns a house with unbreakable windows, walls, doors, and locking mechanisms. The doors have an electronic lock that requires a passkey to open. Also, assume that the police have a warrant to search this house.

If the police arrives with a warrant, you don't have to open the door for them.

If we take this as true, then the police will be unable to access the house unless they guess the passkey or catch the person entering his own house.

Re:You don't have to open the door

[u38cg]

Actually you do. It is a contempt of court not to co-operate with a warrant.

Re:You don't have to open the door

[Anonymous Coward]

"Police work is just sooooo haaaaaaarrrrrrrd. I know! Lets just force the accused to do our work for us, and then punish them when they don't! Who cares that they can't do it either, amirite?"

Re:You don't have to open the door

[fnj]

Tough shit, coppers, not my problem. He wouldn't say that out loud of course. He wouldn't say anything. They can most probably prove the premises belong to him, but for all they KNOW factually, he may have forgotten the passkey, or the vagaries of brain deterioration may have erased it.

The scenario is entirely artificial and fanciful of course. A better scenario is if the premises are wired to self-destruct key evidence on forced entry, and are clearly marked to that effect so no one could say there was reckless endangerment of anyone. Can he be coerced into produced the passkey which will deactivate the self-destruction? I say no. In withholding the passkey, he is not even pro-actively committing any act to obstruct justice. The obstruction occurred before there was any lawful warrant obtained.

Re:You don't have to open the door

[Hognoxious]

The obstruction occurred before there was any lawful warrant obtained.

So what?

By that logic I can set up a gun operated by a tripwire where I know someone will walk and it's not murder because the gun was there before the victim.

Pretty sure the law considers intent, which takes into account anticipation of future events, and not just chronological sequence.

Re:You don't have to open the door

[fnj]

Non sequitur. You pose deadly force; my scenario had none. You intend harm; I intend none.

My property, my protection. I told you there were suitable warnings posted to protect against reckless endangerment.

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:Can't say I agree with this one

[blackraven14250]

Have you ever wondered why you're free to post this in public, and haven't been neutralized yet? I'm thinking it might be because your view of the state of the world isn't based in reality.

Re:Can't say I agree with this one

[Millennium]

So which part of my post did you miss: the part where I insisted that these searches need to be properly warranted, or the part where I asserted that warrantless searches need to be stopped? Admittedly, I didn't mention the need for individualized suspicion as I normally do, but even without that, I in no way called for your straw argument of absolute ubiquitous search powers.

Re:Can't say I agree with this one

[moeinvt]

I disagree. If they have a warrant, they can search the data on the hard drive by taking possession of it. The owner should be under no obligation to facilitate their search.

If they execute a search warrant on your home, you don't have to tell them where any of your possessions are located. If you have an effective hiding place that frustrates their search, so be it.

Re:Can't say I agree with this one

[Anonymous Coward]

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.

Actually, you don't have to let the police in. They are allowed to break in, though. Which is similar to the hard drive issue: You shouldn't have to let them in, but if they can break the encryption, the data is admissible.

Another analogy: If the police have a warrant to search your house for drugs, and they ask you where the drugs are, you are under no obligation to tell them. They have to do their own damn search. Similarly, you shouldn't be under any obligation to make their search of your drive easy on them.

Re:Can't say I agree with this one

[Lieutenant_Dan]

Can they force you to open a safe?

Or to use a car analogy; can they ask to unlock the car door?

Re:Can't say I agree with this one

[NatasRevol]

However, if he ever gets convicted of anything, it will be used against him.

It's not like AC isn't tied to a timestamped IP that's traceable back to the logs of his ISP.

Re:Can't say I agree with this one

[bill_mcgonigle]

Can they force you to open a safe?

Only if they have direct evidence that there is something in that safe.

So, if the safe door is open and they see a bricks of coke in there, and then you shut it, a judge can order you to open it for them.

If they just want to see what's in your safe, to see if there's anything in there that they can use to charge you because "you're probably a bad guy", then no, a judge cannot issue such a warrant.

Of course, when the SWAT team has just shot your dogs and has a HK MP5 to your head and orders you to open the safe, the presence of a per se justice system is only relevant to the very brave and possibly foolish.

Re:Can't say I agree with this one

[Millennium]

I'm not the one confusing the Fourth Amendment with the Fifth.

Providing the password to decrypt a hard drive proves that you had control over the hard drive, but this is not incriminating in and of itself. The court records are full of people who have claimed that others secreted illegal or incriminating content on drives that they controlled. Sometimes that can even be verified, and even when it cannot, it still provides a wedge for reasonable doubt.

I bring this up because encrypted drives doen't provide any sort of protection against these sorts of attacks. Malware and exploits continue to function more or less unabated: they might not be able to extract data from individually encrypted files, but if they're running on a drive you encrypted (and, presumably, unlocked in order to use it), the full-drive encryption does nothing to prevent that.

The end result is that the same defenses used for unencrypted drives still work for encrypted ones. At most, proving that you had control of an encrypted drive demonstrates you have some measure of technological savvy, but a prosecutor won't be able to use that to prove you weren't hacked: even the best of us get hit from time to time.

Bottom line: decrypting a drive is not self-incrimination.

Re:Can't say I agree with this one

[bill_mcgonigle]

If you have an effective hiding place that frustrates their search, so be it.

Right, they have the power to search, not a right to succeed.

Re:Can't say I agree with this one

[Golddess]

Decrypting a hard drive is no different from letting the police into your house for a search

Actually, the two are quite different. A better comparison would be decrypting the contents of a physical, paper notebook. Because that is what a hard drive is, a notebook, made out of metal, and written to using magnets.

I honestly do not know how the law treats physical, paper notebooks that cops cannot read (though I know my own feelings on the subject), but we really need to stop comparing encrypted data to locked doors, locked safes, and other such objects.

Re:Can't say I agree with this one

[fnj]

I think it' is elementarily obvious that they can ASK you to do anything.

Can they FORCE you to open a safe or unlock a car door? Of course not. They will ask you, but if they have to and they have a warrant, they will just break into it.

Re:Can't say I agree with this one

[SuiteSisterMary]

A warrant does not compel you to let the police into your house to search; it allows the police into your house to search. You don't have to open the door, they'll bust it down.

Well, they can search your encryption all they want, if they can break it.

Re:Can't say I agree with this one

[FuzzNugget]

Decrypting a hard drive is no different from letting the police into your house for a search

Sure it is.

The distinction here is that your home and the key to it is a physical "thing". Your encryption key is in your mind. By divulging it, you're effectively testifying against yourself.

And as someone else already mentioned, it is not illegal to not help the police in their investigation, only to actively obstruct it. You don't *need* to let them in, they can break down your door. You don't *need* to provide them the encryption key, it's up to them to break it.

What were they THINKING?

[dave_leigh]

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.

Re:What were they THINKING?

[blackraven14250]

If they discover fingerprints at the crime scene, with no gun present, they can get a warrant to search your house for the gun.

Re:What were they THINKING?

[Qzukk]

they can get a warrant to search your house for the gun.

And when they show up, they're free to rip the sheetrock off the walls, tear apart your upholstery and dump out all of your potted plants, but they can't make you tell them you taped the gun to the inside of the chimney.

Re:What were they THINKING?

[Shados]

I'm unfamiliar with american laws.

Can they make you unlock the door to the room where the chimney is instead of having to blow the door up?

Re:What were they THINKING?

[NatasRevol]

But you don't have to give them the keys to your house, or the combo to the safe.

Re:What were they THINKING?

[SecurityTheatre]

They can't force you to do anything. You have a right to remain silent and uninvolved.

If they have a warrant, they can kick the door down and whomever is found guilty of the crime becomes liable for the damages incurred during the warranted search.

Re:What were they THINKING?

[Shados]

Fair enough. I thought the right was limited to not being forced to say "Yeah, I did it", but that you had to cooperate. If you don't, then the outcome of that case makes a lot of sense.

Re:What were they THINKING?

[wisnoskij]

In the States they have a law that protects your right not not incriminate yourself. I think, basically it is not illegal to look out for your own interests with regard to a criminal case.
But, being the States it is really only applicable if you have lots of money OR the government doesn't want anything from you.

Re:What were they THINKING?

[Shados]

Yeah i knew about "not incriminating yourself". Its what that means that I was confused about. Opening the door to a meth lab vs saying "yeah, i own a meth lab".

But from what is said above, sounds like even helping open the door is part of it.

Re:What were they THINKING?

[gnasher719]

Can they make you unlock the door to the room where the chimney is instead of having to blow the door up?

Good question. What would "make you unlock" mean? They can't hit you until you open it. They can only take you to court. If it is a normal door, the judge would say "don't bother _me_, just kick the door in". Even then, the judge cannot "make you unlock" the door. He could put you into jail until you unlock the door, but he can't make you unlock it.

Re:What were they THINKING?

[Shados]

Yes, "make you unlock" in this context meant "Ask you politely to unlock it or get charged with something for not doing it"

Re:What were they THINKING?

[wisnoskij]

They are both the same thing. You cannot just have the freedom to not incriminate yourself through speak, or the prosecution would just ask you to drive them to your meth lab instead of asking you if you have one.

At the same time. The law does have certain abilities, like warranted searches. Where you are not allowed to stop them from searching your house.

Makes sense to me.

[Anonymous Coward]

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.

Re:Makes sense to me.

[gnasher719]

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.

Further evidence is incriminating, absolutely. But it is not self-incriminating. If the police ask him "is there CP on that encrypted drive", answering "yes" would be self incriminating. To see the difference between "incriminating" and "self-incriminating", a very simple test: If he says "I am guilty", and a policeman says "he is guilty", is it the same thing? No. One is a confession, one is just an unproven statement. So if he said that, it would be self incriminating. If he decrypts the hard drive, or a policeman decrypts the hard drive, is it the same thing? As far as evidence on the hard drive is found, no. Therefore, giving the police access the the encrypted data is not self incriminating. But if the hard drive contains lots of CP, but no evidence whatsoever that it is his CP? In that case, the fact alone that he decrypted the hard drive shows he had access to it, while a policeman encrypting it (with the help of a huge computer, or a password given to him in an anonymous phone call) doesn't prove it. Therefore "self incriminating". But as the previous judge said, they _know_ it is his drive. Therefore, no self incrimination.

Re:TFA

[MysteriousPreacher]

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.

Your Crazy

[Murdoch5]

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.

Re:Your Crazy

[Black Parrot]

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

According to the prosecution.

Re:Your Crazy

[Compholio]

What if he's cheated on his taxes and his tax documents are on one of those other drives? Forcing him to decrypt the contents of the other drives could force him to incriminate himself for crimes unrelated to the original search.

Re:Your Crazy

[gnasher719]

What if he's cheated on his taxes and his tax documents are on one of those other drives? Forcing him to decrypt the contents of the other drives could force him to incriminate himself for crimes unrelated to the original search.

He wouldn't be incriminating _himself_. Like when you open the door when police comes with a search warrant; they find evidence that incriminates you, but it isn't self incrimination.

For your fear that evidence is found unrelated to the original crime: Tough shit. If they search your house, the same thing happens. Anything that is found while following the orders of the search warrant can be used against you. That is even true if they go to the wrong house by mistake (one case where the police had a search warrant for the apartment on the top floor, didn't realise there were two apartments, and found a gun while searching the wrong one). The law isn't there to protect criminals, it is there to protect innocent people, and protecting criminals is just an unfortunate side effect.

Obviously they would have a hard time explaining why they checked his tax documents while looking for pictures. Not only checking them, but checking them to the extent they could see fraud. But if he has a directory "Tax fraud 2012" or "Forged bank statements", I think they have the right to check.

Re:Your Crazy

[wisnoskij]

He is not guilty until after trial with a jury determines his guilt. Until then, he is innocent by legal definition.
And even prosecuted criminals on death row still have all of their rights, and laws still apply to them.

PS: You're*

Re:Your Crazy

[ebno-10db]

For your fear that evidence is found unrelated to the original crime: Tough shit. If they search your house, the same thing happens. Anything that is found while following the orders of the search warrant can be used against you. That is even true if they go to the wrong house by mistake (one case where the police had a search warrant for the apartment on the top floor, didn't realise there were two apartments, and found a gun while searching the wrong one).

IANAL, so I can't say you're wrong, but if you're right, it's a clear violation of the 4th:

no Warrants shall issue, but ... particularly describing the place to be searched, and the persons or things to be seized

The reason for that specificity is so the police can't go on fishing operations. Yeah, we have a warrant for apt. 2B, oops, we searched 3C, next time we'll hire cops who can read. It's a crock, if you can't get a warrant for 3C, just get one for 2B and "accidentally" go to 3C instead.

Re:Your Crazy

[ebno-10db]

P.S. Did you think the Founding Fathers were so ignorant or naive as to not know how these games are played? The Bill of Rights was written to prevent abuses that in many cases had been going on for centuries.

Re:Your Crazy

[Murdoch5]

Once one of the volumes was opened and they noticed it contained illegal material they had cause to believe that the rest would also contain that same material, he then has to prove they didn't. If in the process of proving they didn't he incriminated himself then it's not a violation of his fifth amendment, because he was guilty.

Re:Your Crazy

[Murdoch5]

I can accept you're innocent when there isn't 100% proof your guilty. If they can't prove beyond any doubt you committed a crime then your innocent. The issue here is that once a volume was opened and once they saw child porn this guy was 100% guilty. He can no longer violate his fifth amendment because from this point on he's not incriminating himself, he's already guilty and so giving the rest of the material to the police wont cause the guilt.

Re:Your Crazy

[wisnoskij]

First off, I disagree, you need a jury and a trial for guilt.
And here is one example using this case of why. They say it is child pornography, and they say that he put it there and saw it and that those drives are his.
1. We do not KNOW that those drives are his or what evidence that the prosecution even has for this belief.
2. We do not KNOW that there were exclusively his or that others did not have access to them. Or what viruses or remote access hacks/programs were on the computer this drive was attached to.
3. Porn, and child porn, both are relative. We have no idea what the FBI found. Was it a copy of Hounddog (2007); A picture of a flat chested porn star: An image of his niece at the beach; A video of his girlfriend, from high school?

And even if he was already proven guilty, he can still incriminate himself in other crimes/a more serious version of this crime.

Re:Your Crazy

[Murdoch5]

If they aren't his pictures then he's still fine, any skill computer analysis and security expert should be able to tell his the computer has been compromised. I think if the pictures weren't his, he should be coming clean faster, to pass any possible guilt he could have. However that still doesn't account for why the volumes are encrypted, being encrypted usually means you either have something to hide OR something to protect, if they aren't his pictures he shouldn't be doing either.

Re:Your Crazy

[wisnoskij]

There is too much wrong with this last statement to even try to counter it.

Re:Your Crazy

[SuiteSisterMary]

Even if the police know for a damn fact there's illegal materials in the encrypted volume, requiring him to unlock the volume is tantamount to requiring him to acknowledge ownership of the volume, which is self-incrimination.

"Is this your drive?"
"Fif."
"Unlock the drive."
"Okyday, here's the password."
"How would you know the password if it wasn't your drive?"
"Fif."
"Too late."

Re:Your Crazy

[Murdoch5]

Stop completely ignoring the point, it's not just you but almost everyone. The police can't ask him for the password to a volume when they have no clue what's in ANY of the volumes. That would mean they can suspect what ever they want but they have no PROOF! If the man in question didn't even know about them then he should act in good faith and submit the computer / notebook for inspection, therefore in no way looking or acting guilty, it's the same theory behind people who refuse to submit DNA when they haven't done anything wrong, you look guilty by holding out.

The exact second one of those volumes got opened and the police saw the contents they had a valid reason to demand access to the rest. If the man in question really doesn't have any idea what's in them then why not just state that very boldly and hand the computer / notebook over with out hesitation. If he does know what's in the other volumes or if he's trying to hide something then he would act defensive. Innocent people don't act defensive because they have nothing to defend.

So by refusing them access to the volumes and for refusing to hand over the passwords to the volumes AFTER one has been opened he is acting guilty and by that act assuming ownership of the material.

Re:Your Crazy

[SuiteSisterMary]

So by refusing them access to the volumes and for refusing to hand over the passwords to the volumes AFTER one has been opened he is acting guilty and by that act assuming ownership of the material.

Wow. Just, wow.

Re:Your Crazy

[Murdoch5]

It's the same logic behind people who refuse to give DNA after a rape's been committed when they haven't done anything wrong. You only look guilty by refusing, the smart and innocent people offer up the DNA right away and get themselves excluded from the investigation. When you don't corporate and you don't try to help yourself look innocent your just going to make yourself look guilty. Two states, innocent and guilty and you can't be innocent when you avoid at all costs proving it, regardless of what the law says, your guilty until you prove your innocent in my books.

Re:Your Crazy

[fuzznutz]

If the man in question didn't even know about them then he should act in good faith and submit the computer / notebook for inspection, therefore in no way looking or acting guilty, it's the same theory behind people who refuse to submit DNA when they haven't done anything wrong, you look guilty by holding out.

You are either the most deluded sycophant I have ever seen, or the most naive imbecile. Make sure you keep thinking about how you "have nothing to hide" while the DoJ sifts through all you phone calls or comes asking for your "DNA" to make sure you're innocent.

Re:Your Crazy

[Murdoch5]

No, I'm just smart, I'm not going to cause a big shit fit when I have nothing to hide. The government already has access to all your records, phone calls, credit information and mostly likely everything you've ever googled. You can either keep living in blind ignorance of the fact privacy is dead or accept it. If I can clear my name quickly by just submitting a DNA sample or by handing over volumes of illegal material that aren't mine then I'll gladly do that. It's sad people think they have privacy from the powers of the government, if they want you they will take you.

Re:Your Crazy

[fuzznutz]

Thanks for clearing that up. You are clearly the naive imbecile proudly marching along toward the police state smiling broadly and proclaiming, "I have nothing to hide."

The fact that your government "has access to all your records, phone calls, credit information and mostly likely everything you've ever googled" should scare the shit out of you, making you run to your representative demanding they strip those powers away from the president. Instead, you happily submit DNA, hand over passwords and cheer from the stands as your president spies on you and your neighbors while the courts redefine your "inalienable" rights to suit themselves better.

You might want to read up on history. You might want to start on Nazi Germany, or even communist East Germany for that matter. Or Stalinist Russia. Or Ceausescu's Romania, Or Paul Pot's Cambodia. Or Vichy France. Or Franco's Spain. Or more recently the Kim dynasty of North Korea. There's no shortage of cases to study. And if you think that it couldn't happen here, I'm sure that there were lots of naive imbeciles in those situations that didn't see it coming either. If the shit ever does hit the fan, you better hope that whoever ends up with the power finds you worth keeping. But hey! At least you'll be able to say you did your part to stop those evil child pornographers and terrorists or whomever the boogeyman du jour happens to be. Never mind that the people with REAL POWER to hurt you just got stronger.

Re:Your Crazy

[neonKow]

That is completely wrong. He doesn't have to prove anything. Even as a "criminal," you have rights, and just because there's strong proof that he had CP on one drive it doesn't mean he suddenly loses his rights to not decrypt those drives.

Re:Your Crazy

[Murdoch5]

I know what the law says but I think it's broken. The law needs to be updated so that once you've been proven guilty by physical evidence, hence CP, you can no longer maintain the rights of an innocent individual. In this case it's not a question if he broke the law, he did, they have proof, it's a question of how bad the law has been broken and to what level he needs to be considered a guilty man. Innocent at this point is impossible.

Re:Your Crazy

[neonKow]

You don't seem to have a good understanding of how rights work nor of the legal process in general.

Re:Your Crazy

[Murdoch5]

I know exactly how it works, but it just so happens it works using a broken set of rules.

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

Re:TFA

[91degrees]

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.

They're pulling the wool over the judge

[Anonymous Coward]

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.

What if there is evidence of murder on his drives?

[gatkinso]

A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.

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?

Re:Can't remember?

[SecurityTheatre]

In the UK, if they can convincingly claim that the encrypted drive was recently in your possession, they can hold you in prison for such forgetting...

Re:Can't remember?

[painandgreed]

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

Probably additional perjury charges.

He will be replaced soon.

[Lumpy]

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.

Re:What if there is evidence of murder on his driv

[Black Parrot]

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?

Ongoing

[Impy the Impiuos Imp]

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?

Re:Ongoing

[SecurityTheatre]

They guessed his password. It clearly took several months, meaning they were probably using a hybrid dictionary attack.

Crackers can guess several hundred passwords per second on AES256 encrypted TrueCrypt containers. If his password was a bit dumb (or if it was similar to his Windows login, or some other cached login), it might be easier to guess.

Re:Ongoing

[u38cg]

Probably just a very enthusiastic dictionary attack and a crappy password.

I wish this were more promising

[intermodal]

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.

Re:I wish this were more promising

[Steve_Ussler]

How so? please explain.

Re:What if there is evidence of murder on his driv

[SecurityTheatre]

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.

Re:What if there is evidence of murder on his driv

[gnasher719]

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.

Re:Infinitesimal means infinitely small

[Steve_Ussler]

Sometimes a comment is just a comment.

What if this wasn't a child porn case...

[onealone]

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.

I think I'd reword the last sentence...

[LVSlushdat]

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.

Your hard drive contains child porn.

[GuB-42]

We managed to compute the one-time-pad you used to encrypt it.

Wait. . . What?

[darth_borehd]

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?

Re:Wait. . . What?

[darth_borehd]

But how is that consistent with the ruling that you do not have to decrypt your hard drive?

Forced Decryption

[splitcells]

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.

Re:What if there is evidence of murder on his driv

[Golddess]

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.

? Encryption

[drissel]

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

But, wait!

[pz]

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?

Hold on a sec...

[FuzzNugget]

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)

Re:Hold on a sec...

[FuzzNugget]

"Going through the drive with him," because...? How did this come about? Why would he be going through the drive with the FBI in the first place?

Re:Hold on a sec...

[FuzzNugget]

Well, then the initial collection of evidence is legally permissible (border inspections don't even require suspicion, let alone a warrant). It's bullshit and shouldn't be this way, but it's legal.

Re:What if there is evidence of murder on his driv

[j-beda]

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.

Re:What if there is evidence of murder on his driv

[Golddess]

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.

Re:That is EXACTLY how to wage and win

[Aaden42]

Paths to victory:

* Damage our reputation through the rest of the world as a result of our overreaction and constant trampling on other nations. Too much of this, and our position as a world leader begins to suffer, and we just turn into a bully with lots of bombs. Once I think we were a world power because the rest of the nations of the world respected us. Increasingly, we take a page from Machiavelli, and we are "respected" (perhaps tolerated is a better word) as a world power simply because we can kill more of their citizens than they can kill of ours.

* Cause us to abandon our ideals of freedom and democracy (a piece at a time), thus destroying the basis that the nation was founded on and the things that make it (IMHO) great. This is an ideology win in that they can point and show how all of our freedoms don't actually amount to anything and that their restricted life controlled by government controlled by religion is the right and natural state of the world. They prove we had it wrong from the start.

* Ultimately, goad America into spending itself into inescapable debt through permanent war, eventually resulting in the destruction of the Republic. The question here is how long we can continue to "borrow" money on the unspoken threat that we continue to use our military to "protect" the rest of the world as long as the world continues to buy our debt. ("That's an awfully nice country you've got there. Shame if anything was to happen to it..")

All told, I think we're on a pretty good track to fulfill these paths to loss in this asymmetric .. no, sorry.. I can't bring myself to apply the world 'war' to this.

If you measure victory in just number of Deaths

[ChainedFei]

...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.

Re:TFA

[91degrees]

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.