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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.
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.
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!
This is very hardware dependent. Plenty of systems out there that require a passkey to unlock but nuke themselves with a few bad tries. They are not clonable (unless you're the NSA and even then some go to lengths to prevent chip lapping and other methods from working). In essence it's a small computer that you can not practically copy with a hardened interface that stores the actual decryption keys.
Even the TPM chips tied to hard drives should support that.
No sir I dont like it.
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.