U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment

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U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment

Posted by Soulskill on Tuesday June 4, 2013 @09:17PM from the bowling-for-scotus dept.

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."

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My goodness by niftydude · 2013-06-04 21:23 · Score: 5, Interesting

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

Now to see if it holds.

--
You can never know everything, and part of what you do know will always be wrong. Perhaps even the most important part.
1. Re:My goodness by Anonymous Coward · 2013-06-04 21:39 · Score: 5, Insightful
  
  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.
2. Re:My goodness by Taco+Cowboy · 2013-06-04 21:44 · Score: 5, Insightful
  
  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
  
  --
  Muchas Gracias, Señor Edward Snowden !
3. Re:My goodness by rvw · 2013-06-04 21:45 · Score: 2
  
  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?
4. Re:My goodness by roman_mir · 2013-06-04 22:15 · Score: 4, Interesting
  
  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.
  
  --
  You can't handle the truth.
5. Re:My goodness by Nerdfest · 2013-06-04 22:34 · Score: 4, Insightful
  
  Many offer hope. It's delivering the reality that seems to be beyond anyone's grasp once they've had a taste of power.
6. Re:My goodness by nospam007 · 2013-06-04 22:35 · Score: 4, Informative
  
  "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.
7. Re:My goodness by ultranova · 2013-06-04 22:47 · Score: 5, Insightful
  
  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.
  
  --
  Forget magic. Any technology distinguishable from divine power is insufficiently advanced.
8. Re:My goodness by Anonymous Coward · 2013-06-04 22:54 · Score: 5, Funny
  
  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!
9. Re:My goodness by wbr1 · 2013-06-04 23:05 · Score: 5, Funny
  
  You forgot one...
  "Think of all the terrorist children!"
  
  --
  Silence is a state of mime.
10. Re:My goodness by Squiddie · 2013-06-04 23:08 · Score: 2
  
  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.
11. Re:My goodness by jythie · 2013-06-04 23:25 · Score: 4, Insightful
  
  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.
12. Re:My goodness by Blaisun · 2013-06-04 23:30 · Score: 5, Informative
  
  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.
13. Re:My goodness by Anonymous Coward · 2013-06-04 23:47 · Score: 5, Insightful
  
  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.
14. Re:My goodness by LMariachi · 2013-06-04 23:59 · Score: 5, Informative
  
  "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.
15. Re:My goodness by msobkow · 2013-06-05 00:07 · Score: 4, Interesting
  
  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.
  
  --
  I do not fail; I succeed at finding out what does not work.
16. Re:My goodness by ranulf · 2013-06-05 00:15 · Score: 4, Insightful
  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.
17. Re:My goodness by Gr8Apes · 2013-06-05 00:29 · Score: 5, Funny
  
  Sarah Palin?
  Ouch! Stop punching me!
  You brought her into this, you'll have to make her stop.
  
  --
  The cesspool just got a check and balance.
18. Re:My goodness by L4t3r4lu5 · 2013-06-05 00:35 · Score: 3, Insightful
  
  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."
  
  --
  Finally had enough. Come see us over at https://soylentnews.org/
19. Re:My goodness by Anonymous Coward · 2013-06-05 00:52 · Score: 2, Interesting
  
  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.
20. Re:My goodness by kannibal_klown · 2013-06-05 00:54 · Score: 2
  
  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?
21. Re:My goodness by gstoddart · 2013-06-05 01:00 · Score: 4, Insightful
  
  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.
  
  --
  Lost at C:>. Found at C.
22. Re:My goodness by Hatta · 2013-06-05 01:15 · Score: 5, Interesting
  
  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.
  
  --
  Give me Classic Slashdot or give me death!
23. Re:My goodness by john.r.strohm · 2013-06-05 01:19 · Score: 5, Informative
  
  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.
24. Re:My goodness by Chickan · 2013-06-05 01:21 · Score: 4, Insightful
  
  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.
25. Re:My goodness by srobert · 2013-06-05 01:36 · Score: 4, Informative
  
  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.
26. Re:My goodness by samkass · 2013-06-05 01:36 · Score: 2
  
  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.
  
  --
  E pluribus unum
27. Re:My goodness by Zemran · 2013-06-05 01:38 · Score: 4, Funny
  
  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.
  
  --
  I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
28. Re:My goodness by MightyYar · 2013-06-05 01:41 · Score: 3, Interesting
  
  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.
  
  --
  W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
29. Re:My goodness by DigiShaman · 2013-06-05 01:41 · Score: 3, Funny
  
  These children just need a hug. Just don't set off the bomb in doing so.
  
  --
  Life is not for the lazy.
30. Re:My goodness by parkinglot777 · 2013-06-05 02:15 · Score: 4, Insightful
  
  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.
31. Re:My goodness by saleenS281 · 2013-06-05 02:21 · Score: 4, Interesting
  
  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.
32. Re:My goodness by gnasher719 · 2013-06-05 02:26 · Score: 4, Insightful
  
  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.
33. Re:My goodness by Lord+Apathy · 2013-06-05 02:28 · Score: 5, Insightful
  
  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.
  
  --
  Supporting World Peace Through Nuclear Pacification
34. Re:My goodness by Antipater · 2013-06-05 02:28 · Score: 5, Insightful
  
  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.
  
  --
  Everything is better with chainsaws.
35. Re:My goodness by j00r0m4nc3r · 2013-06-05 02:31 · Score: 5, Interesting
  
  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
36. Re:My goodness by gstoddart · 2013-06-05 02:37 · Score: 4, Insightful
  
  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.
  
  --
  Lost at C:>. Found at C.
37. Re:My goodness by interkin3tic · 2013-06-05 03:11 · Score: 4, Interesting
  
  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!"
38. Re:My goodness by rahvin112 · 2013-06-05 03:21 · Score: 4, Insightful
  
  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.
39. Re:My goodness by kscguru · 2013-06-05 04:11 · Score: 2
  
  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.
  
  --
  A witty [sig] proves nothing. --Voltaire
40. Re:My goodness by Nemyst · 2013-06-05 04:14 · Score: 4, Insightful
  
  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.
41. Re:My goodness by MouseTheLuckyDog · 2013-06-05 04:37 · Score: 2
  
  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".
42. Re:My goodness by archont · 2013-06-05 05:01 · Score: 2
  
  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.
43. Re:My goodness by ImprovOmega · 2013-06-05 06:38 · Score: 2
  
  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.
Rights... by Anonymous Coward · 2013-06-04 21:24 · Score: 4, Insightful

How much cash you got? :/
Re:I hope the guy wins by Anonymous Coward · 2013-06-04 21:57 · Score: 2, Funny

Yeah, I'm always thinking of the children... *drool*
The United Kingdom generously offers... by Anonymous Coward · 2013-06-04 22:02 · Score: 4, Informative

...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 by cffrost · 2013-06-04 22:02 · Score: 5, Insightful

"I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. [...] The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0." — Robin Shellow
God damn right. I don't care what anyone says about lawyers — this woman speaks the truth, and she has my respect.

--
Thank you, Edward Snowden.

"Arguments from authority are worthless." —Carl Sagan
1. Re:Robin Shellow by ebno-10db · 2013-06-05 02:33 · Score: 4, Insightful
  
  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.
To play devil's advocate... by Alioth · 2013-06-04 22:12 · Score: 2

Imagine we had this: an accused, who has a safe made from unobtanium (which needless to say, is as hard as Minecraft bedrock) with an unpickable lock. Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed? If this is the case, then why can't someone be ordered to turn over encryption keys in the case of encrypted data where there is a properly issued search warrant?

--
Oolite: Elite-like game. For Mac, Linux and Windows
1. Re:To play devil's advocate... by Anonymous Coward · 2013-06-05 02:34 · Score: 2, Insightful
  
  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.
As usual, rubbish article by gnasher719 · 2013-06-04 22:17 · Score: 4, Informative

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.
1. Re:As usual, rubbish article by Anonymous Coward · 2013-06-04 22:44 · Score: 2, Interesting
  
  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.
2. Re:As usual, rubbish article by wonkey_monkey · 2013-06-04 23:03 · Score: 2
  
  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.
  
  --
  systemd is Roko's Basilisk.
3. Re:As usual, rubbish article by AmiMoJo · 2013-06-04 23:38 · Score: 4, Interesting
  
  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.
  
  --
  const int one = 65536; (Silvermoon, Texture.cs)
  SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
4. Re:As usual, rubbish article by DeBattell · 2013-06-04 23:39 · Score: 2
  
  I think hard drives should be considered as an extension of your brain, and thus as protected as the content of your brain.
5. Re:As usual, rubbish article by gnasher719 · 2013-06-04 23:49 · Score: 2
  
  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.
6. Re:As usual, rubbish article by Anonymous Coward · 2013-06-05 00:40 · Score: 3, Informative
  
  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.
7. Re:As usual, rubbish article by Rich0 · 2013-06-05 01:15 · Score: 2
  
  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?
8. Re:As usual, rubbish article by IndustrialComplex · 2013-06-05 03:17 · Score: 2
  
  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.
  
  --
  Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
It's not the case by dutchwhizzman · 2013-06-04 22:49 · Score: 2

You can't force someone to hand over that key. Not now and not in the past. However, the police has the right to open the safe any way they find fit if there is a search warrant. If they open the safe and you get convicted based on evidence found in the safe, the damage to the safe is yours to pay for. If they find evidence inside the locked safe, it's found in a lawful way and is admissible as evidence.
If they opened the safe without a proper warrant, they would be liable for damages to the safe and anything found inside the safe would not be admissible as evidence in a court case. That is why there are warrants. They are not about forcing people to hand over keys.

--
I was promised a flying car. Where is my flying car?
You don't have to open the door by dutchwhizzman · 2013-06-04 22:56 · Score: 5, Insightful

If the police arrives with a warrant, you don't have to open the door for them. It is not a crime to not open that door. However, they have the right to knock it down and you can't claim damages that you may occur because of it. You don't have to actively assist the police in serving the warrant. As long as you are not actively obstructing them (putting up extra barricades, destroying evidence after they announced their warrant), you're not doing anything illegal.
If you know there is evidence against you on the encrypted device, you would be incriminating yourself by turning it over to the police. The police can presume there is evidence on the drive, but presumption is not proof. Once you hand over that evidence, it would be admissible and thus self incriminating.

--
I was promised a flying car. Where is my flying car?
1. Re:You don't have to open the door by gnasher719 · 2013-06-04 23:31 · Score: 2
  
  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.
2. Re:You don't have to open the door by Anonymous Coward · 2013-06-05 02:57 · Score: 2, Funny
  
  "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?"
Can't say I agree with this one by Millennium · 2013-06-04 23:11 · Score: 3, Interesting

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.
1. Re:Can't say I agree with this one by Golddess · 2013-06-05 04:38 · Score: 2
  
  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.
  
  --
  "I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
2. Re:Can't say I agree with this one by FuzzNugget · 2013-06-05 08:00 · Score: 2
  
  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? by dave_leigh · 2013-06-04 23:20 · Score: 2

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.
1. Re:What were they THINKING? by Qzukk · 2013-06-05 01:16 · Score: 3, Informative
  
  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.
  
  --
  If I have been able to see further than others, it is because I bought a pair of binoculars.
2. Re:What were they THINKING? by SecurityTheatre · 2013-06-05 02:11 · Score: 2
  
  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.
3. Re:What were they THINKING? by gnasher719 · 2013-06-05 02:37 · Score: 2
  
  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.
A way to genuinely be unable to decrypt your HD by Anonymous Coward · 2013-06-05 00:22 · Score: 5, Interesting
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.
1. Re:A way to genuinely be unable to decrypt your HD by deadweight · 2013-06-05 00:53 · Score: 4, Interesting
  
  Best part is you don't have to DO any of it but have the bills and claim you did LOL
They're pulling the wool over the judge by Anonymous Coward · 2013-06-05 00:32 · Score: 2, Informative

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.
Can't remember? by onealone · 2013-06-05 00:48 · Score: 3, Interesting

In cases like these, what's to stop the defendant from saying they don't know the password, or can't remember?
Re:Makes sense to me. by gnasher719 · 2013-06-05 00:51 · Score: 2

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.
He will be replaced soon. by Lumpy · 2013-06-05 00:53 · Score: 3, Insightful

A judge that defends the constitution is not desirable to the Republicans or the Democrats. He is an enemy to both parties and will be replaced after this. I think the judge is a hero, but in the USA today, that is career suicide to not let the government trample any and all rights.

--
Do not look at laser with remaining good eye.
Re:Your Crazy by Compholio · 2013-06-05 01:00 · Score: 2

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:What if there is evidence of murder on his driv by SecurityTheatre · 2013-06-05 02:24 · Score: 4, Informative

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:Ongoing by SecurityTheatre · 2013-06-05 02:28 · Score: 2

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:What if there is evidence of murder on his driv by gnasher719 · 2013-06-05 02:33 · Score: 2

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.