Slashdot Mirror
'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
Seems like encryption systems need to have two passwords; one that decrypts the volume and another that wipes the keys and images a fresh filesystem. When they compel you to enter your password, you enter the "destroy code."
Sure, you could be charged with tampering with evidence if they realized what you'd done. But maybe that would be preferable to indefinite incarceration for contempt of court.
Breakfast served all day!
There is precedent for this when the defendant has already decrypted the drive for authorities and then refuses to do so for the court. In that case, the contents are considered a "foregone conclusion" and there is no question that the defendant both acknowledges the encrypted volume and knows the key to decrypt it. This is a reasonable balance against Fifth Amendment protections.
If he has not ever revealed the password to authorities, the Constitution absolutely prohibits this action by the court. A man cannot be compelled to self-incriminate, the court may not presume guilt (innocent until proven guilty), and the court can only establish guilt through due process of law (everything from investigation to conviction) and with equal protection under the law (the law is applied the same way to everyone). This ruling blatantly violates most of these basic rights if the contents of the drive are not a "foregone conclusion."
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--
My password is "sorry I've forgotten my password". They won't be able to claim I didn't tell em!
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.
As a victim of a rubber hose attack by the American government I can offer some insight into how it works and how everyone looks at the issue wrong. The government usually gets it hands on you somehow and threatens you with some ridiculous mandatory minimum prison sentence. Its a somewhat civilized approach to the rubber hose attack.
You go hire a big buck attorney who starts to work on the case. Next thing you know the government is offering you immunity for whatever is on your computer in exchange for the passwords. Of course your attorney says give them the passwords and this thing will likely go away. You hand over the passwords and it goes away, the statute of limitations ticks off a few years later.
Now if you are the main target of their interest they will wait until they can nail you to the wall and do this step to anyone they think may be able to help.
A better approach would be to use a wifi accessible ssd hidden in a wall or elsewhere it wont be found. Most of the time they are in and out of your house in under a hour, it is very rare, without an informants telling them all of your opsec secrets that anything well hidden will be found.
Cops are humans, most humans are lazy and have mixed feelings about their job, remember that. Encrypted disks in the hands of the government should be treated as the starting point in negotiations.
Like the sticker note with the password on the bottom of the laptop.
"I don't know the pw, it's on the bottom of the laptop."
Police: "..." Unless of course they filmed the whole arrest and house visit.
And about the 'forgone conclusion' and the fact they aren't simply starting the trial based on the evidence that led to this conclusion:
I think it's quite possible that law enforcement told the judges, confidentially, that they already have hacked the disks using a secret back-door or other procedure, but just can't (won't) make that public. In that case a trial wouldn't work either.
And where is the proof that the files are actually on his HD and that he hasn't deleted them already?
He could admit downloading them (out of curiosity), but erasing them immediately upon discovering their true nature.
Which leaves the testimony of his sister to deal with, who must have been really pissed off by the pictures she's seen on his phone--maybe her own child was involved, that she witnessed against her own brother?
"Trump!!", the new Godwin.
.Perhaps some type of expiry after 30-60 days of non-use for sensitive encrypted drives might protect against this, since there's no way the person could decrypt the drive after that threshold.
You aren't imagining the defendant's computer in a nice neat room with his drives plugged in and a cop sitting at it trying to guess the password, are you?
No, the drives will have been imaged through a hardware device that blocks all attempts to write, and their work will be on their own computers running their forsensic software against the images of his drives, with his original drives safely in the evidence lockup.
And if criminals start using drives with custom firmware to foil this (they've already read the first GB sequentially? return gibberish and erase everything!), the cops will then be removing the control boards and subsituting their own before they do the imaging.
"Self destructing crypto" will just be something else for them to work around. It might foil the local police department, but if the FBI/NSA/CIA/etc. really wants your data, that's not going to foil them any more than straight strong crypto will.
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...