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

[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]

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

[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

[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

[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

[Gr8Apes]

Sarah Palin?

Ouch! Stop punching me!

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

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

[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

[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

[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

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.

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.

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.