"They can break any encryption as well as a safe. They are just unwilling to wait that long."
Yes, they could try to break the encryption using pretty much any (non-destructive) means available to them. In some cases they have tried that, and I believe in at least a few they succeeded.
In other words: giving up the password would be "admission" that he had control over those drives. That is something the government did not already know. So while it was the password itself, and not the actual content, the exact same analysis applies.
If they already knew "with reasonable particularity" that he had access to those drives, then they could have compelled him to produce the password, because he could not incriminate himself. So the analysis does not change even a little.
"Your analysis is off-the-mark for this particular case. According to the judge's writeup linked in the summary, the prosecution in this case actually did have evidence that child porn files were being downloaded to the servers and saved to the encrypted disks."
No, it's not off the mark, because they didn't KNOW it was on those disks.
Just as OP quoted the court: "... tantamount to telling the government something it does not already know with 'reasonably particularity'".
They did not KNOW that with reasonable particularity. As I just got done explaining in some detail.
I meant to add: probable cause has to be based on evidence, whereas suspicion does not. That's the main reason probable cause is a stronger legal argument than suspicion.
"Keys to the safe. It's been a long history of rulings saying that if the cops know or have reason to believe you put something in a safe, and they have reason the believe that those documents are valid to the case at hand, they can compel you to open it with a warrant. Your diary and handwritten notes are not protected from a search if they are sitting on your desk, and they are not protected if the cops have reason to believe that you put them in a safe either.
Difference in this case appears to be that the cops only know that there is encrypted data, but they can't provide reasonable evidence that the defendant put it there."
There are a couple of ways here that you are subtly wrong. You are closer than most other people here though.
First, there is a legally important difference between a key and a combination. The first is a physical thing, and the second is knowledge. Why that is important is that knowledge can become testimony. A key is not.
But the main things that most people get confused about here are "suspicion" (or reason to believe), "probable cause", and "knowledge".
Anybody can have suspicions about anything. Suspicion is an extremely weak legal argument. The authorities can do very little on suspicion alone.
Probable cause is a stronger legal argument. They can search a safe and even force it open if they have probable cause. And even demand a key.
The 5th Amendment is stronger than either one. It covers your thoughts and words. They have to have a very, very strong case indeed -- far stronger than just probable cause -- before then can compel you to give up passwords. But... if they can force open the safe, or brute-force the encryption, they still only need a warrant. Then no 5th Amendment question comes up.
"Likewise, if there's good reason to believe that you have a different set of books in a safe, or perhaps a murder weapon - you can be compelled to give the combination."
Not even.
In 5th Amendment cases, "reason to believe" is not good enough. Even probable cause is not good enough. They have to KNOW, already, that there is something illegal in there (and exactly what it is) before they can compel a password or a combination. See my explanation elsewhere in this thread.
If they don't already know it's there, beyond reasonable doubt, they can't compel you. Because then you would be incriminating yourself.
However, what they CAN do, if they have probable cause and it's something like a safe, is force it open. (If we assume they physically can. There are few things that can't be forced open given time and money.) If they force it open, there is no 5th Amendment question.
"I think a really interesting test case would be if a criminal used a confession or otherwise key incriminating evidence as the pass phrase for an encrypted device. If they plead the Fifth, and then were compelled anyway - how much would be ruled inadmissible?"
Because of what I just explained, that could never happen. If they already know that there is something illegal there, then they can compel you to divulge the password or combination. But if they DON'T already know, they can't compel you to divulge because the act of doing that would be incriminating yourself.
"The argument I've heard is that, when information is at rest, it's not considered testimony for the information to be read (but some other form of discovery). Therefore if it can be shown that you're in a position to decrypt the drive, and the drive is admitted in discovery and you refuse to facilitate discovery, you are standing in the way of the discovery and can be held in contempt of court."
If it has not been shown that the drive can be decrypted with information you have, or could reasonably be expected to have (say, it can be shown by inductive reasoning that the drive contains the log of your activities), or if for example the ownership of the keys or the drive and the encrypted data is in question, it's not reasonable to compel you to decrypt it under penalty of contempt. It hasn't even been shown that it's in your power to facilitate the discovery.
You can be similarly compelled to provide paper documentation, even if it was sent through the mail. It's not testimony. It's facilitating (or obstructing) discovery.
This is COMPLETELY off the mark. Here's how it actually works. (I should add that there have been several other cases about this point recently, and none of them ruled that it was "a close call", as this judge seems to think.)
If the government does not know that there is illegal material, or evidence of illegality, in the encrypted material, it cannot compel you to give up the password because that would be testifying against yourself.
There are a couple of essential points here: first, it has to be "a product of your mind". Something you know. Not some kind of item that they know exists. For example, in many circumstances you can be compelled to turn over a key to a locked door, because a key is not testimony. (Other matters surrounding a search of a locked room are beyond the scope of this post.)
The second essential point is that the government has to KNOW there is something illegal in the encrypted data in order to compel you to give them the password. Not "reasonable suspicion" as OP states. It has to be known beyond reasonable doubt. Because -- and this is the big point -- if they already know it's there, then you aren't incriminating yourself... you have already been "incriminated". You aren't admitting to anything because the illegal material is already known to exist. So, since you can't be said to be incriminating yourself, they can compel you to give up the password.
So let me give you some examples from other recent court cases like this one:
Someone was suspected of fraud but the evidence was all encrypted. The government could not prove the fraud without that evidence, which they had good reason to believe ("reasonable suspicion" as OP described it) that the evidence was in that encrypted data. But because of that, the government could not compel the defendant to give them the password, because there was a real danger he would be incriminating himself, which the 5th Amendment says you can't compel.
In another case, a man was crossing the border with a laptop. At the time, customs was allowed to search at will. (A Federal court recently ruled that government needs probable cause to search even at borders. But at the time, it was considered kosher.)
The man's laptop was turned on but asleep. His encryption software was running, so an encrypted volume on his hard drive could be accessed. 2 customs agents saw child pornography in the encrypted part of the drive, before the man somehow managed to turn the computer off. When it was turned back on, of course the encrypted data was no longer accessible.
In this case, it was ruled that the government could compel him to produce the password, because the government already knew there was illegal material there. He could not be said to be incriminating himself, because they already knew it was illegal. The testimony of 2 customs agent was acceptable "k
What I find amusing is that TFA characterized them as doing it "smarter", but I don't see any evidence of that. On the contrary.
To be honest with you, when they make that trade, because there is "something in it for them", I think they often make bad decisions, because they don't fully understand what they are giving up in exchange.
OP should say "yet another study", because this is hardly the first study to show this. I know of another one that was at least a couple of years ago.
But I guess in a way that's the point: these studies have continued to show the same thing: hands-free conversations are no safer than phone-to-ear conversations.
Having said that, and I know lots of people will disagree with me, but there have been other studies showing that in regard to cell phones and accidents, correlation most definitely does not equal causation. So these "no talking on cell phones while driving" laws are bullshit.
Having said that: there DOES appear to be a causative link between texting and accidents.
Personally, I think if they really want to crack down on "distracted driving", what they need to do is ban children.
That only has to do with BitTorrent's (the company) OWN servers. And they weren't aggregating infringing links anyway.
The vast majority of BitTorrent traffic has absolutely nothing to do with BitTorrent, the company.
As far as I know, there is no way to track file syncing via BitTorrent, unless your ISP is monitoring your usage at the last mile. You might be able to pull off a man-in-the-middle, or spoof a node, IF you knew somebody was about to sync. But how many machines are you going to be syncing with, anyway? You should be able to spot a spoof pretty easily.
"The money might be coming out of the pockets of other investors. It also might be coming from efficiency that HFT enables"
I don't know that I'd call it "efficiency". Ease, maybe. Not the same thing.
"Efficient allocation of resources leads to less waste and more total wealth."
Show me where HFT leads to efficient of allocation of resources. I do not agree at all.
Trading in goods leads to efficient allocation of resources. But HFT today happens FAR too fast to have much impact on physical goods or manufacturing. It's only "efficient allocation of resources" if you consider numbers in a computer to be resources.
And in exchange, as this event demonstrates, we have to contend with dangerous and unhealthy volatility.
The Stock Market was intended to "efficiently allocate resources" when stocks represented actual investment in actual goods and services. Today, as often as not they are just derivatives being shuffled around, which don't much affect "resources" other than cash in somebody's pocketbook.
It's hardly anything anymore but a big casino. And even worse, with HFT it isn't successful companies that gain or lose, it's whoever can place his bet first. People who think that makes for a healthy market are off their nut.
"At this point Agile has assume mythical qualities. Any time anything fails to work as promised by Agile, the implementation gets the blame, not Agile."
I do not agree with you at all. My point was that there are good and bad environments all over the place. You can't blame the particular things GP complained about on Agile, because they simply don't have anything to do with Agile.
Please explain to me where it is written that Agile methodologies have anything to do with any of these things:
Your identity, your family life, your life, being a work-bot, dissention, obedience.
I have seen bad office environments and I have seen good office environments. And those things can be bad anywhere, for any kind of work methodology.
I have also worked in bad "Agile" shops. And I worked in one very GOOD Agile shop. The difference is night and day. The first one was kind of like GP describes. The other was like the difference between night and day. I'd work in a place like that again any day.
But, the important part is: they were all "Agile" shops. Those things GP complained about had nothing to do with the Agile methodology at all. Some workplaces were good, some were bad. The bad ones had bad management. Period.
"Some other suggestions from the San Francisco video monitoring startup: don't fill your engineering department with young, single, childless males (aka brogrammers)."
Who's the idiot who came up with "brogrammers"? Sounds like a bunch of gay guys from "da hood".
"...that we shouldn't want things like identities, families, and lives. It is a joy for us to be interchangeable work-bots. Dissention must be expunged so that we can be assimilated. Obedience is happiness!"
"Agile" does nothing of the sort. If that's how you're doing Agile, you're doing it wrong.
"Risky, not really. Remember who owns the media companies. If people are not able to read about reality, they don't know reality."
Risky, really.
Maybe not risky to them personally, but risky to their cause. All it would take is an already-suspicious public to know that it was done, and why. Exactly who did it is far less important. Not unimportant... just lots less.
"So I would be a fraud if I had a facebook account."
Precisely. There are several things wrong with trying to actually use this in the real world.
(1) 91% is not nearly good enough. Period.
(2) Even if it were 99.9% accurate, it would still not be good enough. Because it runs into the base rate fallacy.
(3) Similar but not related to the base rate fallacy, is that a statistical correlation between datasets of millions says nothing about an individual account.
"Fuck that, Copyright laws are important. If I make a software, I WANT all the users to pay me for my creation."
Copyright laws may be important, but they also need to be reasonable, and they also have to allow for "fair use". Anything else is a genuine crime against society.
A single screen cap out of a video, as part of a discussion about the product, is CLEARLY fair use, by U.S. law.
The problem here isn't the concept of copyright law. The problem here is greedy corporations and abusive laws like the DMCA.
"National security questions are separate from criminal justice questions - different ends, different processes."
They often are, legally, today. But they should not be. That's the point. Because the moment civil rights are infringed, your real "National Security" just went down a big notch. True security lies in freedom... never the opposite. Because it may not be immediate or obvious, but eventually the less freedom you have, the less secure you are as an individual or citizen.
Rights are intended to apply to ALL citizens. Terrorists or not. The more heinous the crime, the stronger this should be adhered to. Because it is precisely at these times it is so tempting and convenient to break the system down.
"And no, liberty is not dying in the United States.... at least not as a result of this matter."
Not this particular matter, no. This particular issue... yes.
Slashdot Mirror
"They can break any encryption as well as a safe. They are just unwilling to wait that long."
Yes, they could try to break the encryption using pretty much any (non-destructive) means available to them. In some cases they have tried that, and I believe in at least a few they succeeded.
In other words: giving up the password would be "admission" that he had control over those drives. That is something the government did not already know. So while it was the password itself, and not the actual content, the exact same analysis applies.
If they already knew "with reasonable particularity" that he had access to those drives, then they could have compelled him to produce the password, because he could not incriminate himself. So the analysis does not change even a little.
"Your analysis is off-the-mark for this particular case. According to the judge's writeup linked in the summary, the prosecution in this case actually did have evidence that child porn files were being downloaded to the servers and saved to the encrypted disks."
No, it's not off the mark, because they didn't KNOW it was on those disks.
Just as OP quoted the court: "... tantamount to telling the government something it does not already know with 'reasonably particularity'".
They did not KNOW that with reasonable particularity. As I just got done explaining in some detail.
I meant to add: probable cause has to be based on evidence, whereas suspicion does not. That's the main reason probable cause is a stronger legal argument than suspicion.
"Keys to the safe. It's been a long history of rulings saying that if the cops know or have reason to believe you put something in a safe, and they have reason the believe that those documents are valid to the case at hand, they can compel you to open it with a warrant. Your diary and handwritten notes are not protected from a search if they are sitting on your desk, and they are not protected if the cops have reason to believe that you put them in a safe either.
Difference in this case appears to be that the cops only know that there is encrypted data, but they can't provide reasonable evidence that the defendant put it there."
There are a couple of ways here that you are subtly wrong. You are closer than most other people here though.
First, there is a legally important difference between a key and a combination. The first is a physical thing, and the second is knowledge. Why that is important is that knowledge can become testimony. A key is not.
But the main things that most people get confused about here are "suspicion" (or reason to believe), "probable cause", and "knowledge".
Anybody can have suspicions about anything. Suspicion is an extremely weak legal argument. The authorities can do very little on suspicion alone.
Probable cause is a stronger legal argument. They can search a safe and even force it open if they have probable cause. And even demand a key.
The 5th Amendment is stronger than either one. It covers your thoughts and words. They have to have a very, very strong case indeed -- far stronger than just probable cause -- before then can compel you to give up passwords. But... if they can force open the safe, or brute-force the encryption, they still only need a warrant. Then no 5th Amendment question comes up.
"Likewise, if there's good reason to believe that you have a different set of books in a safe, or perhaps a murder weapon - you can be compelled to give the combination."
Not even.
In 5th Amendment cases, "reason to believe" is not good enough. Even probable cause is not good enough. They have to KNOW, already, that there is something illegal in there (and exactly what it is) before they can compel a password or a combination. See my explanation elsewhere in this thread.
If they don't already know it's there, beyond reasonable doubt, they can't compel you. Because then you would be incriminating yourself.
However, what they CAN do, if they have probable cause and it's something like a safe, is force it open. (If we assume they physically can. There are few things that can't be forced open given time and money.) If they force it open, there is no 5th Amendment question.
"I think a really interesting test case would be if a criminal used a confession or otherwise key incriminating evidence as the pass phrase for an encrypted device. If they plead the Fifth, and then were compelled anyway - how much would be ruled inadmissible?"
Because of what I just explained, that could never happen. If they already know that there is something illegal there, then they can compel you to divulge the password or combination. But if they DON'T already know, they can't compel you to divulge because the act of doing that would be incriminating yourself.
"The argument I've heard is that, when information is at rest, it's not considered testimony for the information to be read (but some other form of discovery). Therefore if it can be shown that you're in a position to decrypt the drive, and the drive is admitted in discovery and you refuse to facilitate discovery, you are standing in the way of the discovery and can be held in contempt of court."
If it has not been shown that the drive can be decrypted with information you have, or could reasonably be expected to have (say, it can be shown by inductive reasoning that the drive contains the log of your activities), or if for example the ownership of the keys or the drive and the encrypted data is in question, it's not reasonable to compel you to decrypt it under penalty of contempt. It hasn't even been shown that it's in your power to facilitate the discovery.
You can be similarly compelled to provide paper documentation, even if it was sent through the mail. It's not testimony. It's facilitating (or obstructing) discovery.
This is COMPLETELY off the mark. Here's how it actually works. (I should add that there have been several other cases about this point recently, and none of them ruled that it was "a close call", as this judge seems to think.)
If the government does not know that there is illegal material, or evidence of illegality, in the encrypted material, it cannot compel you to give up the password because that would be testifying against yourself.
There are a couple of essential points here: first, it has to be "a product of your mind". Something you know. Not some kind of item that they know exists. For example, in many circumstances you can be compelled to turn over a key to a locked door, because a key is not testimony. (Other matters surrounding a search of a locked room are beyond the scope of this post.)
The second essential point is that the government has to KNOW there is something illegal in the encrypted data in order to compel you to give them the password. Not "reasonable suspicion" as OP states. It has to be known beyond reasonable doubt. Because -- and this is the big point -- if they already know it's there, then you aren't incriminating yourself... you have already been "incriminated". You aren't admitting to anything because the illegal material is already known to exist. So, since you can't be said to be incriminating yourself, they can compel you to give up the password.
So let me give you some examples from other recent court cases like this one:
Someone was suspected of fraud but the evidence was all encrypted. The government could not prove the fraud without that evidence, which they had good reason to believe ("reasonable suspicion" as OP described it) that the evidence was in that encrypted data. But because of that, the government could not compel the defendant to give them the password, because there was a real danger he would be incriminating himself, which the 5th Amendment says you can't compel.
In another case, a man was crossing the border with a laptop. At the time, customs was allowed to search at will. (A Federal court recently ruled that government needs probable cause to search even at borders. But at the time, it was considered kosher.)
The man's laptop was turned on but asleep. His encryption software was running, so an encrypted volume on his hard drive could be accessed. 2 customs agents saw child pornography in the encrypted part of the drive, before the man somehow managed to turn the computer off. When it was turned back on, of course the encrypted data was no longer accessible.
In this case, it was ruled that the government could compel him to produce the password, because the government already knew there was illegal material there. He could not be said to be incriminating himself, because they already knew it was illegal. The testimony of 2 customs agent was acceptable "k
What I find amusing is that TFA characterized them as doing it "smarter", but I don't see any evidence of that. On the contrary.
To be honest with you, when they make that trade, because there is "something in it for them", I think they often make bad decisions, because they don't fully understand what they are giving up in exchange.
If they keep that up, they will regret it later.
"Flamebait"???
Come on, modders, you can do better than that. Read my comment again. I didn't insult anybody.
Um... except the idiot who came up with "brogrammers".
OP should say "yet another study", because this is hardly the first study to show this. I know of another one that was at least a couple of years ago.
But I guess in a way that's the point: these studies have continued to show the same thing: hands-free conversations are no safer than phone-to-ear conversations.
Having said that, and I know lots of people will disagree with me, but there have been other studies showing that in regard to cell phones and accidents, correlation most definitely does not equal causation. So these "no talking on cell phones while driving" laws are bullshit.
Having said that: there DOES appear to be a causative link between texting and accidents.
Personally, I think if they really want to crack down on "distracted driving", what they need to do is ban children.
Hell, I'd like to see a full-blown distributed DNS, to get around all the politicking.
"Why would anybody touch it after this:"
Who the hell cares about that?
That only has to do with BitTorrent's (the company) OWN servers. And they weren't aggregating infringing links anyway.
The vast majority of BitTorrent traffic has absolutely nothing to do with BitTorrent, the company.
As far as I know, there is no way to track file syncing via BitTorrent, unless your ISP is monitoring your usage at the last mile. You might be able to pull off a man-in-the-middle, or spoof a node, IF you knew somebody was about to sync. But how many machines are you going to be syncing with, anyway? You should be able to spot a spoof pretty easily.
s / place his be / place his bet
"The money might be coming out of the pockets of other investors. It also might be coming from efficiency that HFT enables"
I don't know that I'd call it "efficiency". Ease, maybe. Not the same thing.
"Efficient allocation of resources leads to less waste and more total wealth."
Show me where HFT leads to efficient of allocation of resources. I do not agree at all.
Trading in goods leads to efficient allocation of resources. But HFT today happens FAR too fast to have much impact on physical goods or manufacturing. It's only "efficient allocation of resources" if you consider numbers in a computer to be resources.
And in exchange, as this event demonstrates, we have to contend with dangerous and unhealthy volatility.
The Stock Market was intended to "efficiently allocate resources" when stocks represented actual investment in actual goods and services. Today, as often as not they are just derivatives being shuffled around, which don't much affect "resources" other than cash in somebody's pocketbook.
It's hardly anything anymore but a big casino. And even worse, with HFT it isn't successful companies that gain or lose, it's whoever can place his bet first. People who think that makes for a healthy market are off their nut.
Didn't mean to repeat myself in that 5th paragraph. Wasn't paying enough attention to my editing.
"At this point Agile has assume mythical qualities. Any time anything fails to work as promised by Agile, the implementation gets the blame, not Agile."
I do not agree with you at all. My point was that there are good and bad environments all over the place. You can't blame the particular things GP complained about on Agile, because they simply don't have anything to do with Agile.
Please explain to me where it is written that Agile methodologies have anything to do with any of these things:
Your identity, your family life, your life, being a work-bot, dissention, obedience.
I have seen bad office environments and I have seen good office environments. And those things can be bad anywhere, for any kind of work methodology.
I have also worked in bad "Agile" shops. And I worked in one very GOOD Agile shop. The difference is night and day. The first one was kind of like GP describes. The other was like the difference between night and day. I'd work in a place like that again any day.
But, the important part is: they were all "Agile" shops. Those things GP complained about had nothing to do with the Agile methodology at all. Some workplaces were good, some were bad. The bad ones had bad management. Period.
"Some other suggestions from the San Francisco video monitoring startup: don't fill your engineering department with young, single, childless males (aka brogrammers)."
Who's the idiot who came up with "brogrammers"? Sounds like a bunch of gay guys from "da hood".
"...that we shouldn't want things like identities, families, and lives. It is a joy for us to be interchangeable work-bots. Dissention must be expunged so that we can be assimilated. Obedience is happiness!"
"Agile" does nothing of the sort. If that's how you're doing Agile, you're doing it wrong.
"Risky, not really. Remember who owns the media companies. If people are not able to read about reality, they don't know reality."
Risky, really.
Maybe not risky to them personally, but risky to their cause. All it would take is an already-suspicious public to know that it was done, and why. Exactly who did it is far less important. Not unimportant... just lots less.
"Which is why we're going to hear about his tragic and inexplicable suicide* any day now, probably before this case is decided."
It's pretty risky to try to do something like that to a public figure like a judge, especially when everybody is watching.
"#makestoomuchsense"
Mod AC up!
"So I would be a fraud if I had a facebook account."
Precisely. There are several things wrong with trying to actually use this in the real world.
(1) 91% is not nearly good enough. Period.
(2) Even if it were 99.9% accurate, it would still not be good enough. Because it runs into the base rate fallacy.
(3) Similar but not related to the base rate fallacy, is that a statistical correlation between datasets of millions says nothing about an individual account.
"Fuck that, Copyright laws are important. If I make a software, I WANT all the users to pay me for my creation."
Copyright laws may be important, but they also need to be reasonable, and they also have to allow for "fair use". Anything else is a genuine crime against society.
A single screen cap out of a video, as part of a discussion about the product, is CLEARLY fair use, by U.S. law.
The problem here isn't the concept of copyright law. The problem here is greedy corporations and abusive laws like the DMCA.
Funny thing is, last time I looked, you could buy a gadget to do this directly from Ebay for around $6. All you have to do is plug in a SIM card.
Buy one, take off the cover, put it in a stolen utility box... done.
"National security questions are separate from criminal justice questions - different ends, different processes."
They often are, legally, today. But they should not be. That's the point. Because the moment civil rights are infringed, your real "National Security" just went down a big notch. True security lies in freedom... never the opposite. Because it may not be immediate or obvious, but eventually the less freedom you have, the less secure you are as an individual or citizen.
Rights are intended to apply to ALL citizens. Terrorists or not. The more heinous the crime, the stronger this should be adhered to. Because it is precisely at these times it is so tempting and convenient to break the system down.
"And no, liberty is not dying in the United States.... at least not as a result of this matter."
Not this particular matter, no. This particular issue... yes.