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Mass. Supreme Court Says Defendant Can Be Compelled To Decrypt Data
Trailrunner7 (1100399) writes ... Security experts have been pounding the drum about the importance of encrypting not just data in transit, but information stored on laptops, phones, and portable drives. But the Massachusetts Supreme Judicial Court put a dent in that armor on Wednesday, ruling that a criminal defendant could be compelled to decrypt the contents of his laptops. The case centers on a lawyer who was arrested in 2009 for allegedly participating in a mortgage fraud scheme. The defendant, Leon I. Gelfgatt, admitted to Massachusetts state police that he had done work with a company called Baylor Holdings and that he encrypted his communications and the hard drives of all of his computers. He said that he could decrypt the computers seized from his home, but refused to do so. The MJSC, the highest court in Massachusetts, was considering the question of whether the act of entering the password to decrypt the contents of a computer was an act of self-incrimination, thereby violating Gelfgatt's Fifth Amendment rights.
The ruling.
I lost the password in a hard drive crash.
I mean, all you have to say is that you lost the actual key and cannot comply.
Take the 5th and say your computer crashed. That works for the IRS.
We all know the leading cause of hard drive failure is subpoenas.
You can 'compel' all you want, but we know what's really happening.
These encrypted drives are corrupt; they will not accept my password. Sorry.
So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)
just as with a confiscated safe. Authorities should be forced to crack into it themselves.
If you read the ruling, the court admits that the only reason they said the defendant could be compelled to decrypt his data was because he had already admitted to the police that he was involved in the case, and that the details of his involvement were on the hard drive. I'm sure if he had kept silent the entire time and told them nothing, it would've been a different story.
if it's good enough for the IRS....
Next stop, SCOTUS and get new lawyers if they don't want to take you there.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
It's not self-incrimination in the same way that the intersate commerce clause gives the Federal government the power to regulate absolutlely anything that might have any impact on interstate commerce even if it never leaves your house.
That is, it's clearly a blatant violation of the Constitution, to everyone but lawyers.
The will of the people is embraced.
The will of the people is extended.
The will of the people is extinguished.
Haven't read the entire ruling, only scanned it, but there is an important caveat in it:
We now conclude that the answer to the reported question is, "Yes, where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators."
Seems like this guy has said "I did this, this, and this, and these files show that, but I don't want to let you see them", and the Court has ruled that he has to, because he's already admitted to those things, and therefore he would not be incriminating himself in doing so.
Of course, the reality may be that there's evidence of further illegal activities that he hasn't admitted to in the encrypted files. That might make the case for self-incrimination. I'd have to read the full ruling to see what, if anything, they said about that possibility.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
This is why you don't talk to the cops, especially if you find yourself in the fortunate situation of having illegally acquired 13 million dollars and encrypted all of the evidence. If you say nothing to the cops, you win. The only way you lose is if you brag to them about how awesome a job you did at getting away with the crime.
The people up here who are saying "tell them you lost the key" "tell them it was scrambled not encrypted, etc" are all idiots. Lying to the cops is a crime. Telling them nothing is the superior response.
Cop executing search warrant: "it's asking for a password"
Def: "I want a lawyer, I'm not talking to you"
Cop: "You encrypted it, didn't you?"
Def: "lawyer lawyer lawyer"
Cop: "We'll just get a warrant anyway and you'll go to jail. Help us help you."
Def: "did't you hear me? I want a lawyer"
That being said, I'm in FL so I'm covered by the 11th circuit ruling. Either way, silence is golden. I'd say that at least 30 percent of my cases would have turned out much better if clients hadn't consented to searches, admitted to elements of crimes or just generally blabbed when they should have remained silent.
He already incriminated himself when he told the cops that there was evidence on the encrypted drives.
I am very small, utmostly microscopic.
Would it be possible to have a system where you have a second key that "decrypts" to an empty drive? I don't see how they could prove that you used your primary or fake key.
works for the GOP leaders when they testify...or their cronies.
He'll have to call their bluff by not providing the password, and they'll probably hold him for contempt. Then there will be a public opinion campaign to have him released.
Boyd v. United States. This scenario is no different than in Boyd, except for the fact in Boyd the records were on paper and in this case they are electronic. Where can I donate to the defense fund?
just as with a confiscated safe. Authorities should be forced to crack into it themselves.
According to this ruling, if I tell the police that I keep records of 'X' in my safe, I can be compelled to open it for them. If I keep my big mouth shut, which is what this guy should have done, then they may be forced to crack it.
There is NO constitutional NOR legal requirement for a right to be "triggered" in order for it to be applied.
What terrible weasel words;
But his admission of involvement sealed the deal against him -- he should've maintained the 5th throughout
the whole process.
I'd like to get a bill on Congress that mandates that U.S. citizens must house military personnel in their homes at their own expense. It's unconsitutional of course, but when did that ever stop anyone?
Well, it's just like if you told the cops that you had indeed been around the crime scene at the time they asked you about, and so they're allowed to FMRI your memories out about that period of time to prove you're guilty.
Totally not self incriminating. The "self" has been redefined to mean: A collection of molecules that you used to be, but are not now.
They have not a shred of common sense. They aren't smart enough to comprehend rights so all they do is fuck over the public like this.
I get the legalese argument the guy as trying to make and the narrow line they tried to draw with the ruling, but Im not sure why it even got past the original judge.
If it had been the exact same situation, just a combination lock on on physical file cabinet in his office, once a proper court subpena was issued Law Enforcement might have asked for the combination as a courtesy but would have been perfectly within their rights to simply cut the thing open. And if they found evidence of some unrelated crime, that is long been fair game just like a drug bust during a traffic stop.
Maybe it's different by State, I dont know
Common Sense isn't as Common as people think...
This is slashdot, so I didn't read the article. I'm thrilled with this, but I wonder how encryption is any different than a safe. If the government has the legal authority (via a warrant) to open a safe, why wouldn't they have the same authority to decrypt your documents? I'm not arguing that I like the idea, but I don't see how encrypted documents would be a 5th amendment right if documents locked in a safe are not. Can you be compelled to open a safe?
Some privacy policy Slashdot.
Has anybody else been compelled to give up a physical key or did they just get a warrant and use a locksmith? Seems this is the digital equivalent but the state is bitching that since the locksmith is to expensive and takes to much time so they need different rules.
No sir I dont like it.
I think the correct response here would be to say that you can plead the 5th on the question of whether you can decrypt it or not, and if you claim the 5th compulsion is illegal. However, once you make an affirmative statement you waive the right to not be compelled. In terms of a key, it would be like if you had an almost impenetrable door that used a single key. The police ask you if you are in possession of said key while they have a valid warrant. You say yes, which means they have a right to compel you to hand over the key per the valid warrant. However if you shrug and plead the 5th it should not be on you at that point.
Before everyone goes off the deep end, this is a bit of a special case. The reason the court can require him to decrypt the data in this instance is that he has already admitted the crime and that the encrypted data relates to the crime. Thus, nothing new (in terms of crimes committed) would be revealed by decrypting. If he had admitted to nothing and the court had only circumstantial evidence or suspicion of his crime, he could then successfully argue that decrypting the hard drive is self incrimination.
How is this really different than subpoenaing a set of documents? I mean, the court is compelling someone to produce evidence that they have. There are some tails ... is losing/destroying the key destroying evidence? Perhaps. However, I don't see an order to decrypt any different than an order to provide evidence. I mean, right from the 4th "... secure in their ... papers ... unless ..." If there's probable cause adequate to compel the documents, then compelling the decryption thereof is no more an intrusion to the person's security. Now, going further, only the particular documents that are described in the warrant may be copied and searched, but that's a technical measure.
So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)
The roots of the privilege against self-incrimination lie in use of torture to extract confessions, but judges remain firmly convinced that all relevant evidence should be admissible in court. They do not like carving out exceptions.
If authorities ask for the decryption key, don't lie, simply plead the fifth when they ask. State that you are invoking your fifth amendment rights against self-incrimination -- that way you are shielded from future perjury charges for lying about knowing the key.
Seems like a nice legal loophole.
The ruling appears flawed, I sympathize with the dissent, but yeah. This guy screwed himself, in typical lawyer fashion, with excess arrogance.
He did not have to tell the police anything here, he has probably lectured his clients many times on exactly why they should never talk to the police, does not matter if you have nothing to hide, does not matter if you think you have done nothing wrong, and if you have done something but think you can talk your way out of it you are a fool. Ask for your lawyer then shut your mouth, and do not answer any questions, I dont care if they ask you about the weather, the reply is 'ask my lawyer.'
From the language used in the opinion, if he had simply shut his mouth and not started bragging/volunteering information, he would be in a very different situation today.
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Friends don't let friends enable ecmascript.
That's pretty edgy and cool but it's also completely wrong. Read the decision. Let's start with the simple notion that the Fifth Amendment protects you against self-incriminating testimony, but it is not an absolute bar against all kinds of self-incrimination. The court can still compel you to provide non-testimonial aid in their prosecution of you. For instance, the court can get a blood test to show that you were drunk while driving, or swab your cheek to test for DNA, get an example of your voice to play to witnesses, to have you participate in a line up, provide a sample of your handwriting, a sample of your hair, putting on a costume that the suspect was wearing, etc. If this were not the case you'd never be able to convict anyone of any crime.
The defendant in this case was read his Miranda rights. He said that the computers were encrypted, and that he could decrypt the files but would not do so. That doomed him. The court said that decrypting the hard drive was not testimonial in nature. If he had shut the fuck up and said nothing, then the court would probably would have denied the prosecutor's motion because decrypting the drive would be an admission that he knew and owned the contents of the drive. But this fuckhead had already bragged to cops that he could decrypt the data but wasn't going to do so. Thus, there was no self-incrimination.
A NYC lawyer blogs. http://www.chuangblog.com/
This case illustrates why it's so important to have something like the recently-shut down TrueCrypt project out there. If prosecutors can't prove the existence of an encrypted volume, they can't keep you in jail for not giving up the keys for something which might not exist.
Tell me this again in 10-15 years.
Because the way we're going, I have little faith any of this will be true by then. Governments are increasingly deciding the law means whatever they decide it means.
Would I love to be wrong? Absolutely.
Lost at C:>. Found at C.
I mean, all you have to say is that you lost the actual key and cannot comply.
Didn't work for Calvin. It won't work for you.
The lie ends in a citation for contempt and a stay in a Ricker's Island holding cell until your memory improves, or hell freezes over, whichever comes first.
The Supreme Court has ruled that you can't be compelled to provide a password, if the fact that you have the password is, in and of itself, incriminating. So, if there's a hard drive that the police have reason to believe contains child porn (just as an example), and you haven't acknowledged that the drive is yours, then the police can't compel you to provide the password, since to do so would be to admit that the drive is yours (or at least provide strong evidence that it is). If there's no question that the drive is yours, however (particularly if you've admitted that it's yours), then providing the password doesn't in and of itself incriminate you.
Well then I have good news for you! You're wrong. Absolutely.
Come on, there's no more rule of law or Bill of Rights in the US. Get over it, it's gone. And remember to worship and hail Lord Bama.
From the ruling:
"Can the defendant be compelled pursuant to the Commonwealth's proposed protocol to provide his key to
seized encrypted digital evidence despite the rights and protections provided by the Fifth Amendment to
the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights?
and,
"We transferred the case to this court on our own motion. [FN3] We now conclude that the answer
to the reported question is, "Yes, where the defendant's compelled decryption would not
communicate facts of a testimonial nature to the Commonwealth beyond what the defendant
already had admitted to investigators." Accordingly, we reverse the judge's denial of the
Commonwealth's motion to compel decryption. [FN
In which case the decrypted evidence would be redundant, unnecessary, and even irrelevant, hardly justifying compulsion, even in the Reich, er... the Commonwealth.
Operation Chokepoint strikes again??? Sure this was a scam, but unless the guy was blowing the money on hookers, cocaine, or the ponies, and couldn't pay up when it came time, it amounts to a harmless form of arbitrage, paling by comparison to what goes on in Congress and on Wall Street every day.
the Fifth Amendment protects you against self-incriminating testimony, but it is not an absolute bar against all kinds of self-incrimination.
Sure... And we didn't torture people at Gitmo - Al "Torquemada" Gonzalez made sure to redefine the term to make everything perfectly kosher.
When the government can just redefine pesky terms to mean whatever the hell it wants, yeah, the GP has it correct - We have no rights, except the right to do our best to stay under the radar and pray we never piss off the wrong person in power.
Be sure they give you the password to that secret hidden encrypted volume called /dev/random. I am sure they are hiding a lot of evidence in there, in fact trying to copy it off the system it has consumed 4 6tb hard drives so car with no end of stopping...
Do not look at laser with remaining good eye.
Judge thinks you are lying. You're a geek, who presumably knows how to secure information on a computer. You saying "I lost the data" is equivalent to saying "My whole life is a lie and I don't actually know how to do any of the things I always talk about." Bullshit. You didn't lose the data. Your RAID6 didn't have a three-drive failure, and your backups weren't untested.
Same judge can think Lerner is telling truth. Lerner is an administrator, and she uses an iPhone and thinks the "e" on her desktop is the Internet, Her saying "I lost the data" is equivalent to her saying "I think the car's oil might be low, but I haven't looked. but the problem really could be oil, because I read a story in Readers Digest about a couple who saw some smoke coming out their hood, and when they finally got to town for someone to check it out, it turned out they were low on oil!" Her act is consistently dumb enough that no dumbness could be out of character.
When Lerner is asked the airspeed of an unladen swallow, she smiles helplessly, shrugs, and says "I don't know. What did you swallow?" When you're asked, you smugly immediately instinctively counter with "African or European?" and when the judge says "European," your eyes suddenly dart around and you say, unconvincingly, "Uh... I don't know anything about swallows."
Well, we shall see I guess. There's still plenty of time.
Lost at C:>. Found at C.
Sorry, remaining silent (by not decrypting the drives) is an act of self-incrimination? You might as well throw out the 5th amendment then.
Even if the hard drive isn't yours, or it hasn't been established that it's yours, if they know you have the password for whatever reason they can compel you to give it up. Failure to do so would at least be obstruction, or perhaps as bad as aiding and abetting.
Provided they also have probable cause to think there's evidence on that device of course.
=Smidge=
I haven't even looked, but I bet the comments are full of posts saying something along the lines of "What if I forgot the password?" Unfortunately, this cop-out won't work or if it will, it won't for long. In many countries, the courts have already taken a stance that in such a scenario, it's at the court's discretion whether to actually believe your claim of forgetfulness or not. There is no reason to believe the exact same thing won't happen in the US.
If a password self incriminates yourself on another crime it throws a new twist into the whole mix.
In two ways. First, being compelled to provide evidence that already exists isn't protected under the 5th Amendment, only giving testimony. (There are lots of details here, but that's the short version.) Second, once you volunteer information, you waive your 5th Amendment protections for that line of inquiry. (Again, details.) He told the police that the encrypted drive contained evidence and that he had the ability to decrypt it. Not a good move.
Clearly, you've never dealt with our joke of a "justice" system.
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." ~Thomas Jefferson
Uh.....it began a while ago
If you read the dissenting opinions, the dissenting judges make the distinction between the two different testimonial acts. By decrypting the drives, the defendant is testifying that:
1.) He has some control over the drives
2.) He has the information required to make them readable and
3.) The documents on the drives are authentic
So if he hadn't already admitted to the above, it would not be a foregone conclusion and he could not be compelled to decrypt the drives. However, he had, so fine, fair enough.
However, the government has not (in the opinion of the other judges, and me, but IANA{L|J}) identified the evidence they are seeking on the drives specifically enough. If the government knew that there were (say) financial records in your safe they could subpoena the documents and compel you to open the safe if you admitted to knowing the combination, but if they had no clue what was in the safe but suspected it was probably important, they should not be able to force you to open in as part of their evidence fishing expedition regardless of whether or not you admitted that it belonged to do.
Another important point is that the Commonwealth has not, in some of the judges opinion, put into place the legally required safeguards to ensure that details of lawyer-client communications that are probably on some of these devices are inviolate as required under law.
I'm no lawyer, but...
And how so? He waved his ability to execute their search in their faces and then suddenly is surprised when his failure to STFU per the 5th was held against him.
If an ordinary person believes they can give a cop legally valuable information about a case against them and not expect to have that used against them, their intelligence doesn't even rise to the level of pop culture references (you have the right to remain silent, anything you say...)
And let's be clear here. This was a lawyer, not an ordinary person. Odds are higher an ordinary person would have been smart enough to just shut up whereas this guy probably thought he'd use some fancy legal maneuvering he learned along the way to win on a technical point.
and my 128-bit crypto-key
Remember kids, if you're not paying for the service, YOU ARE THE PRODUCT THAT IS BEING SOLD.
... The "self" has been redefined to mean: A collection of molecules that you used to be, but are not now.
Indeed - you can't cross the same river twice (or exact aggregate quantum spin state).
It's called deniable encryption, and is intened to stand up to "rubber hose cryptanalyis".
I don't think even the Wikipedia claims that the geek's "plausible deniability" would protect him from a literal Liam Neeson interrogation.
The best part of this is that a lawyer will be going to prison!!!
"We know you did it, so until you confess, we're going to hold you in contempt of court."
The court is claiming that they really, truly, pinky swear know he did it, because they heard him say so, so that whole "can't force you to testify against yourself" thing doesn't apply.
I don't believe the spirit of the 5th is that it doesn't apply when we know you're guilty.
I tend to agree. But I guess I am confused as why just because he let it be known that he has an encrypted drive, and that he had the capability to decrypt, why that necessitates that there is incriminating evidence on the hardrive. I think those things are separate. Unless he said something to the effect of "The evidence you are looking for is here, and you cannot get it because it is encrypted!!! And I don't want to decrypt it. blah blah blah" . But supposing this guy was actually innocent, and his computers were seized, and he said the same thing that I thought he said. He said that "the computers were encrypted, and that he could decrypt the files but would not do so, not because there is evidence on there, but because I respect my own rights to privacy, and my right not not have my things unreasonably seized." I guess I am just confused as how they know there is evidence on that machine, a warrant is typically for when you know what for and where you are looking.
Your brain is unquestionably yours, and the police have reason to believe that it contains incriminating evidence, so you can be held in contempt until you provide testimony to such, right? Right?
That's why my password is, "I agree to indemnify Loyal Opposition and hold him blameless."
~Loyal
I aim to misbehave.
Wow a three digit ID and yet so naive. The rights have been eroding for years, they will continue to do so.
The constitution is supreme. No law can over-ride the amendments to the constitution. It takes an amendment to do that. The Patriot act is unconstitutional lawyer games which nobody in their right mind would allow (except a lawyer and their definition games where things like the supreme court ruling tomatoes are vegetables by their own unscientific definition.)
Democracy Now! - uncensored, anti-establishment news
First, a lawyer should be smart enough to maintain plausible deniability. Not remembering the password, or claiming he had no idea how it got encrypted, would be a better option than simply saying no.
A judges are sinners, and their sin is pride. if you hurt their pride, they respond accordingly, and that can be good or bad depending on the specifics.
Providing any password in effect provides the means for investigators to use the information against him. In effect he would be testifying against oneself,
I would never provide it.
Create a hidden OS then decrypt your decoy.
No sale.
That's just the relevant part of the 5th. No part of it makes any distinction between "providing evidence" or "trestifying". The way I see it, these are just two of several ways in which you could "be a witness". No doubt the court created this distinction for some purpose, and is building one mockery of our rights on top of a precedent set by another mockery. It's mockery all the way down... until you get to the turtles.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
As I understand it, the logic goes like this - you cannot selectively use the fifth to hide some parts of testimony once you have stated others. ...and so on.
"I didn't shoot him, Freddy shot him. I saw him."
Where were you standing?"
"I plead the fifth."
"Where did Freddy get the gun?"
"I plead the fifth".
Because once the court has heard the one detail (testimony or statement), they are entitled to the whole truth. You cannot selectively reveal some details and not others.
The essence of this case appears to be that the defendant told the police that the evidence was on the encrypted drive and he knew how to unlock it. Having gone that far, he is now obliged, when served with a subpoena, to provide all relevant documentation that he has hidden. Sucks to be him. If the only way to comply with the subpoena is to provide his password, well, doubly sucks to be him.
Simply tell the judge that you are not computer literate, however, you will try to open the hard drive with your password, which is FORMAT DRIVE.
Here is a simple solution.
Make your passphrase an admission of guilt to some crime.
"IStoleACandyBar" would be a self-incriminating statement, and thus protected by the 5th. (If you did actually steal a candy bar.)
No part of it makes any distinction between "providing evidence" or "trestifying".
The word "witness" does. A witness is someone who provides testimony in a legal proceeding. It is not someone who provides non-testimonial evidence relevant to a legal matter.
The way I see it...
...is not the way the law works. Testimony is separate from other kinds of evidence, and the 5th Amendment covers testimony. (The 4th Amendment provides different protections to other kinds of evidence.)
Despite how frequently it occurs, it turns out that your home-grown, intentionally-overbroad, untrained interpretation of the Constitution is not, in fact, a good basis for reasoning about the law.
If the information is already known, then they don't need it decrypted.
This is nothing more than a fishing expedition for more information, and they want to use that information against him, and others. But by law he cannot be forced to testify against himself or his family. So this is another attempt of the fascist police state attempting to exceed their authority.
He should exercise his right to remain silent, because anything he says can and will be used against him.
I would never give it up.
Even if the hard drive isn't yours, or it hasn't been established that it's yours, if they know you have the password for whatever reason they can compel you to give it up. Failure to do so would at least be obstruction, or perhaps as bad as aiding and abetting.
Catch-22, then, as if you invoke your right against self-incrimination, they know that the drive has something about a crime you committed, while if you merely refuse to provide the key, you are arrested for obstruction, regardless of whether or not you actually have the key.
All this is making me start to think of some kind of more clever "panic mode" encryption.
You'd have to make it really fast, such that it's reg proto-encrypted two ways, one normal, and the panic mode. So say something really fast like shift-control-alt-F11 instantly flips the "panic bit".
We as geeks could put all kinds of awesome stuff into it, smashed into a kind of digital Klein Bottle with milk for Schrodinger's cat.
"Do you know how to decrypt it?"
"No"
"Why not?"
"Because it's time-locked with a code that cannot be found until next September."
"Do you know what documents are on there?"
"The ones you are looking for are not there because they were broken into component parts that only the computer knows, tied to a code that September code. Meanwhile other documents you did not know were there, are there, because they were created by algorithms the moment I hit the Panic Button and not a moment before. And the base of the September key is an English phrase which may or may not admit a crime. You don't know."
"So what if the case is dismissed?"
"I can do other work until September. What's important is that it cannot be broken right now."
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Remember the Oliver North trial where he kept on saying "Upon the advice of counsel I am pleading the Fifth" - that was the 80's way to not incriminate worrisome because if you are pleading the Fifth there is something you can be incriminate for. Now you just follow Alberto Gonzales (US Attorney General) stating "I do not recall" that way you don't have to worry about 5th amendment protection, you just have a bad memory.
Calvin:Do you believe in the devil? Hobbes:I'm not sure man needs the help.
If the answer is yes, then it violates the fifth. If he can be convicted without it, then why do they need it?
Your post talks about two very different concepts in a way that might be unclear. Someone might get the idea that the particularity of the evidence sought has something to do with the burden of proof. It doesn't, of course. Those are two different concepts.
The police need to show that they have evidence that a particular thing will be found on the hard drive. As an example, "we're looking for the email that Ms. Lerner sent to Mr. Smith on March 3rd" satisfies that condition. That condition would not be satisfied by "we want to look to see if there is anything illegal in there".
Separately, there is also the question of standard of proof. In most cases, probable cause is the standard for a warrant - the thing sought is PROBABLY in the location to be searched.
Randomly pick a device in your house, and use the mac address, serial number, or part number (if it is sufficiently long) as your password. Then you don't have to memorize anything, and you can honestly claim that you do not know the password...
Which has more power: the hammer, or the anvil?
All this is making me start to think of some kind of more clever "panic mode" encryption.
You'd have to make it really fast, such that it's reg proto-encrypted two ways, one normal, and the panic mode. So say something really fast like shift-control-alt-F11 instantly flips the "panic bit".
We as geeks could put all kinds of awesome stuff into it, smashed into a kind of digital Klein Bottle with milk for Schrodinger's cat.
"Do you know how to decrypt it?" "No" "Why not?" "Because it's time-locked with a code that cannot be found until next September." "Do you know what documents are on there?" "The ones you are looking for are not there because they were broken into component parts that only the computer knows, tied to a code that September code. Meanwhile other documents you did not know were there, are there, because they were created by algorithms the moment I hit the Panic Button and not a moment before. And the base of the September key is an English phrase which may or may not admit a crime. You don't know." "So what if the case is dismissed?" "I can do other work until September. What's important is that it cannot be broken right now."
In my opinion, that likely wouldn't work. Contrary to what you might see on TV or in movies, courts are not generally impressed by technicalities or deliberately unproductive cleverness. Consider the recent Supreme Court ruling against Aereo. The Court was entirely unmoved by the technical argument that the way Aereo implements their service is "basically like" individuals using antennas. They ruled that *overall* Aereo was obviously acting as a rebroadcaster, by taking in broadcast signals and sending them live to a large number of customers and charging for that. The notion that they don't charge for the broadcast, just the rent for the antenna was similarly unconvincing to the Court. Courts tend to look at net results, and less the technical path to achieve it. In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
Most judges and most courts do not consider the law to be a game that people can attempt to create exploits for. Exploiting loopholes in the law is one thing: doing so with an obvious willful intent to subvert the court tends to be looked upon extremely unfavorably. Judges have significant latitude to deal with people they think are trying to do that.
My recent experience in regard to the defendant not taking the stand is that there was no toeing of any lines. The prosecutor in the case made no hint of any sort as to possible reasons for the defendant's decision not to do so. No sly references, nothing.
This kind of thing is where having 2 different keys for an encrypted volume would be good, like a key for personal usage, and another key for usage when under duress.
The normal key would unencrypt the volume for you to use as normal, and the "duress" key would cause the volume to automatically do a secure data wipe of the volume file. So if you're being forced to hand over the key, whether by force (like torture), or under threat of jail time, you can meet the courts qualifications of surrendering your "passphrase", and when they use it, they destroy the volume that they were forcing you let them have access to.
There even may be arguments to make as to how well this would satisfy some requirements: first, your complying, so your not in contempt of court. Second, the key was a legit key that was for "use" with that particular encrypted volume, so you didn't lie. Third: You didn't destroy the evidence, as I'm sure you're not the one who types the key in when you turn it over... some computer forensic IT guy is the one who actually typed the passphrase that deleted the volume, so you didn't physically do it and can't be prosecuted for destruction of evidence.
If you took this a step further, you could even do this how they do in CIA movies with challenge/response pairs after you give a legitmate key for decryption. In other words, you give them your REAL key, but then before the volume can be decrypted with the key, a set of challenge/response words are given, that have to match, with each challenge word having a normal response and a duress response. If any of the challenges are answered with the duress response, then the volume "self destructs". This would possibly be safer to keep you out of trouble, as you would be handing over your actual decryption key phrase, you would just give them a duress response word for one of the challenges. This would be harder to implement, and wouldn't be any more useful than 2 keys for different purposes, except that it might help you from getting in more trouble in court cases like this by following the technicalities of a court ordered demand.
Still no sale. See various definitions of "witness" which are not bound to a single, narrow definition of "testimony on the stand".
"The way I see it" is exactly how law works. If enough people see it a particular way, you get new laws. If the person who sees it a particular way is a judge, his ruling is law... until another judge sees it a different way, all the way up to the Justices, who may then be over-ruled by the other branches and/or The People seeing it a different way. Of course the seeing is only part of it. The acting is all important...
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
http://www.youtube.com/watch?v=6wXkI4t7nuc
Heh... Actually, that line of bullshit might be at risk with the recent unanimous decision that law enforcement needed a warrant for mucking about on a defendent's phone. Basically, this is the same thing and it's expected to be overturned by the SCOTUS if it gets before them.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
After reading over other posts, I can sort of see how this ruling doesn't necessarily erode rights, although I still think it stinks.
If he had been a *good* lawyer and said nothing, then the drive would have had a legal status of "random bits, presumed innocent" and they would have no basis to force his hand.
What he did was indicate there was some kind of evidence on the drive. Big Ooopsie because either the drive has nothing pertinent to the case and he is deceiving the court, or he is telling the truth and the drive contains something pertinent to the case which may incriminate him.
So. Maybe no real rights violation at all. Just a stupid lawyer?
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
If so, it's not hard to have them get a warrant that specifies this, not a court order to relinquish the password. They're distinctly differing notions- and the Judges there overstepped their authority. If it's legit, they could've issued a warrant for specific information and as a part thereof, compelled the unlock of the secured device for that specific information. Since they didn't...doesn't meet the sniff test in light of current precedent.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
That's why I always set my password to "fuck you pigs, you are not getting my password".
My understanding of the fifth (although, IANAL) is that whilst invoking it may cause prosecutors/LEOs to suspect, maybe even believe, that the drive contains evidence that you have committed a crime, the constitutional interpretation is that this suspicion/belief does not constitute evidence/proof and, as such, should not sway, or be used to sway, the decision making process of the court/jury.
Just my $0.03 (At current exchange rates, my £0.02 is worth more than your $0.02)
I'm glad to hear it.
In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
a) no b) no c) no d) no
[a] False because there could be many reasons for your actions, among them political. Encrypting or hiding information is not by itself evidence of wrongdoing. It CAN be, under particular circumstances, when certain other evidence is present. But by itself? No. And even if it DID contain such evidence, if it incriminated you, you could still not be compelled to disclose because of the 5th Amendment. The whole point of this thread.
[b] False because there is no law preventing you from encrypting anything you damned well please. 1st & 4th Amendments.
[c] False if by doing so, you could incriminate yourself (again, the whole point of this entire thread).
[d] False because it would not be possible to show this without having already convicted you on some other charge. It isn't "obstruction of justice" to do something unless it involves an actual crime. You aren't "obstructing justice" unless there is some kind of actual justice that you are actually obstructing.
The courts are inherently biased against defendants and have been for many years contrary to their protestations.
This is why it is always a mistake to talk to the police. There is no upside.
If they hear something from you that helps you then it is deemed "hearsay" by the courts but if they hear something damaging then its admissible evidence.
There is no upside to talking to the police. Ever. Likewise, you do not surrender information to the judge that you don't have to surrender. Including whether or not you can decrypt the files.
Just plead the fifth every time they ask you any question what so ever.
Which sounds like an abuse of the fifth, but the reality is that the court system is screwed up and the fifth is actually just protecting you from it.
I've decided to stop wasting my time responding to AC trolls/sockpuppets... so if you want a response from me... login.
This kind of thing is where having 2 different keys for an encrypted volume would be good, like a key for personal usage, and another key for usage when under duress.
The normal key would unencrypt the volume for you to use as normal, and the "duress" key would cause the volume to automatically do a secure data wipe of the volume file.
What ever you do, if you think you are under legal duress, DO NOT DO THIS!
The first thing even the local cops are trained to do is to make an image of a volume. They do this for two reasons. The first is the legal: don't destroy evidence that the defense may call into question, and keep a chain of custody. The second is because people have tried exactly what you suggest. If you gave them a password that destroyed evidence, then even if they still had the original drive you have "attempted to destroy evidence" and interfered with the investigation, and probably a few other things that will add to your sentence and provided the evidence of the crime just by doing it in front of the police!
The TrueCrypt 'two encrypted areas in a single visible area' is fine if the police can not prove, through digging through windows, that you regularly keep two encrypted drives mounted (say X and Y). If you always mount both as drive X: and don't have other OS signs that it is used for multiple objects (drive UUIDs are unfortunately telling) then you are safer. But if you normally keep X and Y mounted, they'll want proof of what Y is; saying it's a USB stick, letting them plug it in and seeing it automount to G and not having other ids match would be . . . unpleasant.
Your post talks about two very different concepts in a way that might be unclear. Someone might get the idea that the particularity of the evidence sought has something to do with the burden of proof. It doesn't, of course. Those are two different concepts.
Yes, they are different concepts, and it seems you are the one who is getting them confused.
Probable cause is sufficient standard of proof for a warrant. This, for example:
As an example, "we're looking for the email that Ms. Lerner sent to Mr. Smith on March 3rd" satisfies that condition.
... might qualify as probable cause.
However, probable cause is NOT a sufficient standard of evidence for an exception to the 5th Amendment self-incrimination rule. I've written it elsewhere in this thread, but I will repeat it. SCOTUS has ruled that the court must have knowledge, "with reasonable particularity", that the specific evidence IS present before they can compel "a product of the mind" like a password or combination. Only under those circumstances can the suspect be said to not be incriminating himself.
Neither reasonable suspicion or probable cause approach that standard of evidence. It is much higher.
That only applies to people who have no authority that could ever possible impact the judge in question.
"That's a nice tax bracket you have there... it'd be a shame if it got audited for the last seven years, and every year from here on out, into the foreseeable future"
You mean you don't think typical jurors are smart enough to form their own opinion of what he's saying?
It's his job to do the best he can to secure a guilty verdict. It's another guy's job to do the opposite, and yet another's to keep things fair.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
He said the information was on there.
Open the "duress" part - no info - get "wasting police time" etc and possibly worse added on.
This is why whole drive encryption is bad. Even creating a "hidden volume" for plausible deniability is going to look suspicious if anyone bothers to ask who so much of the physical HD space is unused by a dummy OS with a curiously small amount of activity recorded in the system logs.
A safer solution is to randomize new drives with GNU shred (faster PRNG than /dev/*random) and store critical info in smaller encrypted containers that hide amongst the noise. Disable swap or use encrypted swap (with random keys) and disable browser disk caching to eliminate saving sensitive transient data to disk. Use an OS that won't record potentially incriminating info in a registry such as USB device serial numbers.
At that point it's much easier to deny the presence of encrypted data or, if forced to admit its presence, you can use the "I forgot" or "I can't regenerate the password" excuse which can't be done believably with a computer in regular use that has whole disk encryption.
I am becoming gerund, destroyer of verbs.
I probaly have at least 12 old drives and probably can't recall the password on most of them. So does the judge hang me even though I'm telling the truth?
Should be pulled from the bench by a mob with torches and pitch forks and hung from near by tree and set on fire chard remains pissed on by mob.
In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
a) no b) no c) no d) no [a] False because there could be many reasons for your actions, among them political. Encrypting or hiding information is not by itself evidence of wrongdoing. It CAN be, under particular circumstances, when certain other evidence is present. But by itself? No. And even if it DID contain such evidence, if it incriminated you, you could still not be compelled to disclose because of the 5th Amendment. The whole point of this thread. [b] False because there is no law preventing you from encrypting anything you damned well please. 1st & 4th Amendments. [c] False if by doing so, you could incriminate yourself (again, the whole point of this entire thread). [d] False because it would not be possible to show this without having already convicted you on some other charge. It isn't "obstruction of justice" to do something unless it involves an actual crime. You aren't "obstructing justice" unless there is some kind of actual justice that you are actually obstructing.
I am assuming the above was within the context of the same situation the original article articulated, and was offered as a possible defense for such an individual. The case involves a person who has already admitted to having encrypted information that was well known to contain information relevant to a suspected crime. None of this would be applicable to a general request to decrypt information for no reason at all. The Court decision in this case makes it clear the reason for the ruling is the presumption that the disclosure of a password is not testimonially harmful in nature when its already well known that the person did in fact encrypt the data. The post above seemed to be attempting to manufacture a way to truthfully claim the person has no knowledge of a way to decrypt the data and no direct knowledge of the contents of the encrypted files as a technicality. That technicality would not likely help if he already admitted he encrypted relevant information in the first place. If he made no such admission, then prior precedent would likely prevent the authorities from forcing password disclosure as a violation of Fourth Amendment protections against testimonial self-incrimination.
Note the court highlighted the distinction that being compelled to surrender information or evidence that can be used against you is not automatically a violation of Fourth Amendment right to avoid self-incrimination: the right only prevents testimonial self-incrimination; i.e. the right not to be compelled to testify as to one's own guilt or innocence of a crime. If you're forced to give fingerprints to the police, and they tie you to a crime scene, that is not testimonial self-incrimination and not a violation of one's rights under the Fourth Amendment.
What happens if the password itself purposefully includes a self-incriminating statement? The defendant cannot give away the password without making a self-incriminating statement. Of course, to make that point, the defendant gives partial knowledge about the password, which would make it more feasible to break.
No, he was an idiot and gave them probable cause.
It's easier to be a result of the past, but more fun to be a cause of the future! http://www.spacefinancegroup.com/
"I seemed to have forgotten the password, I am sorry. " Case closed.
My encryption key is "I forgot my password, I really did". That way, I can successfully meet the demands of the judge while at the same time giving them something that they won't actually try to use as the key.
Yeah I used to think that when I was 20 too. But I've been around the block a few times and I've heard about the sky falling more than once now. After a while you learn to ignore the hysteria.
Step 1: Acquire fifty one-dollar bills. If you're feeling especially rich, mix fives and tens in with them.
Step 2: Put them into a random order.
Step 3: Generate a password by taking the least significant two digits of each bill, in order, for a 100-digit number. Use this password to encrypt your data.
Step 4: Make sure that the bills never get out of order. Keep them in your desk drawer or another safe place.
Step 5: The cops raid your place. There is a decent chance that a small stack of cash would never make it into evidence, simply vanishing into an officer's pocket. Even if that doesn't happen, they'll catalog the money, sort it (here's where the fives and tens come in handy), and almost certainly get it out of order in the process.
Step 6: Your password is now gone. Unless the cops turned in the cash and kept it in order, it is impossible for you to tell them your password. If the bills make it into evidence, there are up to 50! (~200 bits) possible passwords. If not, there are 10^100 (~300 bits) possible passwords.
Step 7: Don't actually do steps 1-4. Just keep a small stack of cash next to your computer. Your actual password can be your cat's name. Just be willing to testify under oath that you did steps 1-4.
Then he might be able to claim knowing the password would incriminate him. But if he had sole access and the computers were proven to be his, any incrimination would be redundant.
But he already incriminated himself in this particular case by stating that he knew the passwords and could decrypt the drives. Oops.
This will certainly be appealed, as there is ambiguity with federal rulings covering other jurisdictions:
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Computer_passwords
"However, in February 2012 the Eleventh Circuit ruled otherwise - finding that requiring a defendant to produce an encrypted drive's password would violate the Constitution, becoming the first federal circuit court to rule on the issue.[69][70] In April 2013, a District Court magistrate judge in Wisconsin refused to compel a suspect to provide the encryption password to his hard drive after FBI agents had unsuccessfully spent months trying to decrypt the data.[71][72]"
... from simple questions troll? http://yro.slashdot.org/commen...
Nope.
The forensics people take a copy of the drive to work on. Working on the actual drive more than just copying it with a write blocker on raises questions about tampering with evidence, and police have learned to be very strict about such procedures (not that all practice it). No duress key is going to work when the LEOs are working on a backed-up copy.
Even if this weren't the case, the courts would reason that you provided something that wasn't the encryption key, and that you destroyed the evidence since everything afterwards was mechanical and predictable. They would also figure that a guy who knew the duress key almost certainly knew the real key.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Do not ever, ever, ever talk with the police without a lawyer when you are being investigated.
"The way you see it" doesn't matter in practice unless the court sees it your way (either initially or because you or your lawyer convinced him or her). In this case, there are long-established court rulings on what the Fifth actually means, and those are the interpretations that actually matter in legal affairs. You are, of course, free to think differently and argue differently and try to convince people that you are correct, but that's not going to help you when you're accused of a crime and the judge rules based on the Fifth.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
The Fifth does not have a catch-22. Invoking it may not be considered an admission of guilt. In order to be ordered to provide the key, there needs to be evidence that the file does have relevant evidence in it, and very strong reason to believe that you know the key.
There are two cases I'm aware of when the courts ruled a key had to be provided. In one, a guy was checking out his kiddy porn and observed by two customs agents. The courts figured that they knew there was child pornography on the disk, and that the guy had unlocked the files so it was clear he had had the key. In the other (this one), the guy told the police where the incriminating evidence was and that he could decrypt it.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
There are ways of encrypting data so that the ciphertext contains more than one message. One password might reveal a given plaintext, while a second one produces another, entirely more innocent and unrelated.
Obviously, such a ciphertext is larger than one would expect for any resultant plain text, but you could popularize use of encryption that mandates such a larger footprint so that any given user could shrug and say (after giving the password that produces nothing but cookie recipes), "sorry it isn't what you expected, officer!"
tone
The Fifth does not have a catch-22. Invoking it may not be considered an admission of guilt.
The case in the GP post (LEOs know you have the key, ask you for it, but don't suspect there is evidence on the drive concerning you) does turn into catch-22.
Your two choices in that instance are to provide the key or not. Providing the key means that obviously there is nothing on the drive concerning you (unless you are really stupid).
Not providing the key gets you thrown in jail for obstruction unless you invoke your right to avoid self-incrimination. Thus, if you invoke your 5th amendment rights, LEOs know that there has to be something on the drive concerning you, since it has been upheld that "pleading the 5th" when it doesn't actually apply is illegal. So, when you invoke your rights they can throw you in jail for obstruction (claiming you are lying about the contents of the drive incriminating you). OTOH, if you really do have a valid 5th amendment claim, this means that they have certain proof that something on that drive is evidence of a crime you committed...the trick is proving which crime.
Which is where the catch-22 comes in...in this case, invoking your rights leads to the inescapable conclusion that there is definitely evidence against you of a crime on that drive. The only real question is whether LEOs having a search warrant for the drive concerning somebody else could then use information on the drive as evidence against you in an unrelated crime. If they can't, then of course you happily turn over the key 100% of the time.
Basically, this boils down to the 5th amendment only really protecting you when you are the target of the investigation. When you aren't the target, have evidence about the target, and have committed crimes yourself, you end up being SOL unless somebody wants to grant you immunity.
I am assuming the above was within the context of the same situation the original article articulated, and was offered as a possible defense for such an individual.
No. Those are principles of law, at least as it was taught to me by my professors. (But I am not a lawyer.) I will qualify [b], however: if you are doing it for the particular purpose of concealing a crime, there might well be a law against it.
BUT... I think there was a misunderstanding here.
*IF*, as in this particular case, the incriminating evidence were already known, then yes, you could be subject to obstruction (or likely contempt) charges.
When I wrote my prior comment, I thought you were saying that the judge could order the decryption in spite of the 5th Amendment because of the obstruction issue. When in fact the 5th Amendment issue trumps the obstruction. In this case, however, it turned out that the 5th Amendment protection did not legitimately apply.
Note the court highlighted the distinction that being compelled to surrender information or evidence that can be used against you is not automatically a violation of Fourth Amendment right to avoid self-incrimination: the right only prevents testimonial self-incrimination; i.e. the right not to be compelled to testify as to one's own guilt or innocence of a crime. If you're forced to give fingerprints to the police, and they tie you to a crime scene, that is not testimonial self-incrimination and not a violation of one's rights under the Fourth Amendment.
You're getting your amendments confused. The self-incrimination thing is 5th, not 4th. Anyway...
Yes and no. The court highlighted that being compelled is not automatically a 5th Amendment violation. But the judge did not claim that it automatically isn't, either. Just that it's not a foregone conclusion.
Fingerprints and other collection of obvious material evidence is one thing, and generally covered by the 4th. But the whole point here -- the WHOLE point in this ruling -- is that the encryption key involved is not material evidence, but "a product of the mind", as the courts have phrased it in prior cases. Personal knowledge. If compelled, it is by definition "testimonial".
It all boils down to this. It can be stated in relatively few words:
The 5th Amendment protects against testimonial self-incrimination. But when testimony cannot be said to incriminate, the 5th Amendment does not apply and it can be compelled.
In this case, since the court already knew what was there, the defendant could not incriminate himself, because he was already "incriminated". This is actually a pretty rare circumstance. I've only seen I think 2 cases like this in the last 5 years or so. (There may have been more, that's just what I've read about.)
Yup. From the start of the ruling:
"We transferred the case to this court on our own motion. [FN3] We now conclude that the answer to the reported question is, "Yes, where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators.""
So: don't admit the disks are yours, don't admit you know they're encrypted, don't admit you can decrypt them. (Of course, "don't say anything at all", the old standby, covers all of those, thus once more proving its value.)
You're getting your amendments confused. The self-incrimination thing is 5th, not 4th.
Yes it, is; I misstated that. However:
Fingerprints and other collection of obvious material evidence is one thing, and generally covered by the 4th. But the whole point here -- the WHOLE point in this ruling -- is that the encryption key involved is not material evidence, but "a product of the mind", as the courts have phrased it in prior cases. Personal knowledge. If compelled, it is by definition "testimonial".
In the legal sense, that's not true. The specific passage relevant in the decision is:
Here, the defendant's act of entering an encryption key in the computers seized by the Commonwealth would appear, at first blush, to be a testimonial communication that triggers Fifth Amendment protection. By such action, the defendant implicitly would be acknowledging that he has ownership and control of the computers and their contents. [FN13] This is not simply the production of real or physical evidence like a blood sample or a handwriting exemplar. Rather, the defendant's act of entering the encryption key would be a communication of his knowledge about particular facts that would be relevant to the Commonwealth's case. Our analysis, however, does not end here. We must further determine whether the defendant's act of production loses its testimonial character because the information that would be disclosed by the defendant is a "foregone conclusion." The "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual "adds little or nothing to the sum total of the Government's information." Fisher, 425 U.S. at 411.
The court cites FIsher, which states:
It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the "truthtelling" of the taxpayer to prove the existence of or his access to the documents. 8 Wigmore 2264, p. 380. The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, "no constitutional rights are touched. The question is not of testimony, but of surrender."
In this case, the court ruled that statements that disclose no more information than the government already possesses is not "testimony" wiithin the context of Fifth Amendment protections. Not all communicated "products of the mind" are testimony as a matter of law. That's the general test for evidence, but these cases imply that rule does not apply when the communication is not "evidence" in the legal sense. You are correct that the issue centers on self-incrimination, but the case law suggests that when self-incrimination is not an issue, information compelled from a defendant is not really "testimonial in nature" because, I am paraphrasing, no one is testifying to anything in particular.
There's one more important legal catch at work in this case. The defendant was not asked to disclose his encryption keys. He was asked to use them to decrypt his hard drives. So he wasn't being asked to explicitly testify what those passwords were. He was asked to use them to unlock data. The defense argument is that using those passwords *implicitly* testifies to his knowledge of them. But since he already claimed to have the passwords, asking him to use them discloses no more information than he alrea
So when a multinational company is pulling a Double Irish with a Dutch Sandwich the court judge will look upon them extremely unfavorably? Let's face it: it all boils down to the depth of your pockets and the impudence of your lawyers.
You're reversing the two terms. "We're looking for the unicorn named Daisy Fluff" names a PARTICULAR unicorn. That's particularity.
A completely separate issue is whether there is any evidence that Daisy is iprobably in your house.
Two separate questions:
Did the cops specify which particular thing they are looking for?
Did they show evidence that it is probably there?
Particularity isn't "more" than "probable cause" any more than "four" is more than "water" - they are two, separate, unrelated concepts. Particularity doesn't have anything at all to do with burden of proof. It simply means they have to know what they're looking for, they can't search for "anything illegal".
Why're you running from simple questions troll? http://yro.slashdot.org/commen...
So when a multinational company is pulling a Double Irish with a Dutch Sandwich the court judge will look upon them extremely unfavorably? Let's face it: it all boils down to the depth of your pockets and the impudence of your lawyers.
As a matter of fact, when Microsoft attempted to use both unproductive technicalities and obfuscationg cleverness in its anti-trust case they so annoyed the presiding judge that they came within a hairs-breadth of being disassembled by the Federal court, and all of their deep-pocket funded lawyers didn't help matters at all. The only thing that ironically helped Microsoft was that they so annoyed the presiding judge that he stated so publicly, and that gave Microsoft an opening to appeal the judgment as prejudicial. Its still worth noting that even with the appeal on the penalty, Microsoft was still found guilty of violating the Sherman act as a matter of law as the original findings of fact were not overturned.
The use of tax loopholes such as so-called "double Irish" transfers are not attempts to actually defraud or impede the court system itself. They are irrelevant to the post you're replying to.
Would consider the Massachusetts supreme court a kangaroo court of traitors.
The governments in the USSA are police state loser governments. Broke, debased currency, terrible schools, jackbooted military and LEO thugs getting pay and pension to do the dirty work of a corrupt government, they cant even provide proper roads or water supply anymore.
Legalize the constitution. Think for yourself question authority.
So the defendant should simply tell the Mass Supreme Court which anatomically impossible act to commit on its way out the door and continue to refuse to comply. Either they have a case without something from the hard drives or they do not. If they don't, they better hope someone figures out a way to crack the encryption or give up and move on. It's time these clowns in black robes are shown the limits of their stupidity.
I think they already know what's in the documents (because they have them from elsewhere), but they want to be able to whitewash where they got them and how their investigation began by lying under oath.