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'Sorry, I've Forgotten My Decryption Password' is Contempt Of Court, Pal - US Appeal Judges (theregister.co.uk)
Thomas Claburn, reporting for The Register: The US Third Circuit Court of Appeals today upheld a lower court ruling of contempt against a chap who claimed he couldn't remember the password to decrypt his computer's hard drives. In so doing, the appeals court opted not to address a lower court's rejection of the defendant's argument that being forced to reveal his password violated his Fifth Amendment protection against self-incrimination. In the case under review, the US District Court for the Eastern District of Pennsylvania held the defendant (referred to in court documents as "John Doe" because his case is partially under seal) in contempt of court for willfully disobeying and resisting an order to decrypt external hard drives that had been attached to his Mac Pro computer. The defendant's computer, two external hard drives, an iPhone 5S, and an iPhone 6 Plus had been seized as part of a child pornography investigation.
I do not even know any of the passwords I use either at home or work....random passwords+2FA. I could not even remember them, even if my life depended on it.
>"upheld a lower court ruling of contempt against a chap who claimed he couldn't remember the password to decrypt his computer's hard drives"
I am not saying that is the case here, but what if a defendant really doesn't remember the password? Throw him in jail forever? Some devices don't need a key/password UNLESS they are disconnected or reset, and it is very plausible someone might have been using something for a long time without knowing.
This amounts to "We know you're guilty even though we can't prove it so we're not going to bother with proof", and worse, they're using that to apply a potentially unlimited sentence.
Just because the guy is accused of having a child porn collection doesn't mean the niceties of law shouldn't apply.
I'm actually not so much for the right against self-incrimination, but I am very much for the right to a fair trial based on evidence and not what people 'know'. I'm also very much on finite sentences proportional to the needs of protecting society, punishing enough to scare the next guy, and attempting to reform the convicted if possible... but there shouldn't be a sentence at all without a just conviction.
Nothing more to say, really.
A government is a body of people notably ungoverned - AC
So when are the politicians going to be charged with contempt of court when they "do not recall"?
I agree, it's contempt of court. As well it should be, since the court is contemptible. The right against self-incrimination is absolute - you don't have to testify against yourself, you don't have to unlock that (combination) safe, you don't have to decrypt files. You have the right to remain silent.
That is, unless it's the physical key to a safe, or some hardware encryption key. That's physical, and subject to seizure. But a combination or encryption password is a product of the mind, and forcing it out is forcing self-incrimination.
Sure, law enforcement has a right, with the proper warrant, to break into the safe or attempt to decrypt the contents themselves, but failing that, they're simply SOL.
"National Security is the chief cause of national insecurity." - Celine's First Law
No, it is not even fantasy to have a "destroy everything" password. Even a rookie investigator knows to make a copy first. If you provide self-destruct keys it'll be blatantly obvious.
The Courts (and Law Enforcement) have gotten really lazy, and it's confusing to me why they don't see it.
During the San Bernardino iPhone stuff and other such stories, there were so many 'seemingly intelligent' people saying how encryption shouldn't be allowed because it made law enforcement difficult. Since when has it been easy? Wearing gloves makes it hard to pickup fingerprints. Should you outlaw gloves as well? However, these people are saying, "You should be forced to live in a way that makes it simple for us to track you all the time." "Papers Please!"*
Two statements:
"As more and more people are using encryption these days it's much more difficult for us to obtain evidence." - legitimate
"As it impedes our abilities to gather evidence encryption in consumer devices should be restricted or should include a law enforcement backdoor." - completely not legitimate
*(Actually with the 'papers please' that's more about proving you're allowed to be there, rather than checking to see if you shouldn't be there. So it really doesn't apply to the situation.)
--Welcome to the Realm of the Hawke--
I had a couple of encrypted partitions on my Linux setup that I rarely accessed that became inaccessible after a Linux update. In my case I did remember the password but Linux would not accept it. I eventually reformatted it and restored the data from a backup.
Any time you are arrested you should always choose to remain silent and request an attorney even if you are innocent.
This post is encrypted twice with ROT-13. Documenting or attempting to crack this encryption is illegal.
One approach is to use a set associative cache for the device and then store the keys in the cache, but not in the associated blocks on the device. Only with the correct password can you figure out which sectors are safe to read and which ones take extra care.
So any bulk read, overwrites the cache destroying the keys. The wrong password does the same thing.
As someone else pointed out, most TPM chips require a password to decrypt the data, and if you give the wrong password more than a couple times in a row, they wipe themselves.
So you are right, you can't destroy the data on protected offline storage, but as soon as someone tries to read it, it's no longer offline and can wipe itself.
Possibly. That's the real question here, while I've read the case info provided in the article there's a bunch of things that are unclear until I get a chance to read the initial case. But, local police forces which is what this case is doesn't usually have the resources to backdoor things like this unless they're commonly known exploits. And if I remember the cases correctly, if they were seized as part of evidence in the original warrant and they were able to get the information off the drives without his co-operation it wouldn't matter anyway. Since it would have already proven that he was in possession of CP. So that doesn't really matter, in the rare cases where something like this happens they can seal part of the court case to protect the disclosure of things like that which would lead to the compromising of on-going investigations.
The real thing is is what you pointed out though, where the proof. There is none really. The prosecution states they have "known hashes" but that doesn't mean much beyond that. It's more likely that the sister saw actual CP, and that's it. That in itself leads weight to it, but it still doesn't mean too much without the actual evidence.
I wouldn't be surprised if this keeps moving through the court system, or their lawyer simply tells them to take the contempt charge which he'll likely serve on weekends and get on with his life. The contempt charge itself could be an entirely new ball of wax especially if it's contested which wouldn't surprise me. The lawyer(s) in question could make their career defining case off of it. Since then the court will have to prove that he knowingly engaged in contempt.
Om, nomnomnom...