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'Sorry, I've Forgotten My Decryption Password' is Contempt Of Court, Pal - US Appeal Judges (theregister.co.uk)

Posted by msmash on from the know-your-rights dept.

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.

10 of 522 comments (clear)

  1. Contempt of the court... by ruir · · Score: 5, Insightful

    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.

    1. Re: Contempt of the court... by Anonymous Coward · · Score: 5, Informative

      No, you cannot "set your encryption" to do that. Your shit will be imaged.

    2. Re:Contempt of the court... by dougmc · · Score: 5, Insightful

      This is not a Constitutional question — the guy is not asked to testify against himself. What he is to say is not under oath and will not be used against him.

      It is indeed a Constitutional question. He's accused of a crime, and he's being asked, er forced to aid the prosecution. What happened to his right to remain silent, his right against self-incrimination?

      And yes, I do believe it is the goal of the prosecution to use any passwords he provides to find stuff that *will* be used against him. They are *demanding* that he aid their prosecution of him by divulging secrets ... how is that not testifying against himself? Next, are they going to waterboard him for the passwords?

      What is demanded of him is a key to the premises, for which a perfectly valid search-warrant has already been issued.

      If they were demanding a physical key, he could refuse to tell them where that is too. That said, without that ... they'll just knock down the door.

      Also ... has a search warrant been issued to search his brain?

      This stinks to high heaven. I thought that it was already established by case law that you did not have to say anything to aid the prosecution in any way, that your right to remain silent was absolute in a criminal case?

  2. That's not good law by Baron_Yam · · Score: 5, Insightful

    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.

    1. Re:That's not good law by MrDoh! · · Score: 5, Interesting
      That was how the UK version of this law was made to look silly (even though it later passed of course).

      An admission of a crime was made, written up, encrypted, and put on a USB(CD maybe) and sent to the Home Secretary. The police were then contacted and informed that the Home Secretary has, in his possession, an admission of a crime that requires a custodial sentence.
      Technically, that he never had the keys to unlock it was irrelevant. He had an item that was an admission of a crime, he was duty bound to hand it over and unlock it, even though there's no way on earth he could. But the way the law was written, he was the one in trouble.

      If this is allowed to stand, we now have the way for someone/anyone to send you an encrypted file (email/cookies), that will then get you found in contempt of court as you are unable to prove you can't unlock it.

      --
      Waiting for an amusing sig.
  3. In fairness by HeckRuler · · Score: 5, Insightful

    So when are the politicians going to be charged with contempt of court when they "do not recall"?

  4. Contemptible. by msauve · · Score: 5, Insightful

    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
  5. Re:Destroy code? by Kardos · · Score: 5, Insightful

    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.

  6. Only one way out... by tinkerton · · Score: 5, Funny

    My password is "sorry I've forgotten my password". They won't be able to claim I didn't tell em!

  7. Re:What if by ShanghaiBill · · Score: 5, Insightful

    How about we work on improving justice for all without regard to socioeconomic status or race.

    Sure. But if we fix it only for the rich white guys, then they no longer have any motivation to fix the system for others, and it is they that are empowered to do so. We should indeed fix it for everyone. But we need to start at the bottom.