Fifth Amendment shields child porn suspect from decrypting hard drives(arstechnica.com)
arstechnica.com
Fifth Amendment shields child porn suspect from decrypting hard drives
http://arstechnica.com/tech-policy/2013/04/fifth-amendment-shields-child-porn-suspect-from-decrypting-hard-drives/
65 comments
This seems like the first time in quite a while someone's rights have been protected (as far as what's in the news goes, anyway). Unless the guy is convicted, he still has all of those pesky things -- regardless of how obvious his guilt may or may not be to anyone -- and it's a lot better for all of us if they're actually taken seriously once in a while.
What you don't see in the news is the zillions of times a day the system protects peoples' rights through criminal appeals, etc, and the massive overhead that arises from actual criminals abusing those protections in order to try and get out on technicalities.
My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.
You have to take what you see in the news in context of the reality of the people who work within the system every day. It is a system, after all, and systems involve balancing competing interests, but the tech media rarely tackles the complexities of that process.
My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.
You have to take what you see in the news in context of the reality of the people who work within the system every day. It is a system, after all, and systems involve balancing competing interests, but the tech media rarely tackles the complexities of that process.
> What you don't see in the news is the zillions of times a day the system protects peoples' rights through criminal appeals, etc, and the massive overhead that arises from actual criminals abusing those protections in order to try and get out on technicalities.
Good. Better criminals abuse the system than the system abuse people.
> My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.
I don't trust your friends view of clearly guilty, sounds like bias to me.
Good. Better criminals abuse the system than the system abuse people.
> My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.
I don't trust your friends view of clearly guilty, sounds like bias to me.
> Good. Better criminals abuse the system than the system abuse people.
That's a trope. In reality, the justice system is about striking a balance between the need to preserve order and security and the need to protect peoples' rights. That's why the Constitution uses "balance-y" words like "reasonable" when talking about 4th amendment rights.
> I don't trust your friends view of clearly guilty, sounds like bias to me.
I'm sorry to break it to you, but most people the police catch are "clearly guilty." Even my PD friends acknowledge that most of their clients are "clearly guilty" (they see their jobs as more watching out for the ones that aren't and making sure the ones that are get at least a proportionate punishment). The media likes to cover edge cases, but for every one of those, there are a dozens of people who rob a liquor store and leave video evidence of themselves doing it.
It is interesting to note that even most of the cases that are central to defining 4th amendment rights, ones where judges have come down in favor of the defendant, are nonetheless ones where the defendant did actually commit the crime he was accused of committing. Ernesto Miranda was convicted the second time around, for rape, even with his confession excluded, served time, and was ultimately killed in a bar fight.
That's a trope. In reality, the justice system is about striking a balance between the need to preserve order and security and the need to protect peoples' rights. That's why the Constitution uses "balance-y" words like "reasonable" when talking about 4th amendment rights.
> I don't trust your friends view of clearly guilty, sounds like bias to me.
I'm sorry to break it to you, but most people the police catch are "clearly guilty." Even my PD friends acknowledge that most of their clients are "clearly guilty" (they see their jobs as more watching out for the ones that aren't and making sure the ones that are get at least a proportionate punishment). The media likes to cover edge cases, but for every one of those, there are a dozens of people who rob a liquor store and leave video evidence of themselves doing it.
It is interesting to note that even most of the cases that are central to defining 4th amendment rights, ones where judges have come down in favor of the defendant, are nonetheless ones where the defendant did actually commit the crime he was accused of committing. Ernesto Miranda was convicted the second time around, for rape, even with his confession excluded, served time, and was ultimately killed in a bar fight.
Except that we are talking about 5th amendment rights, which are not about striking a balance. The 5th amendment does not use compromise words, it is very clear:
"No person shall be...compelled in any criminal case to be a witness against himself..."
Nothing in there about being "reasonable" or about being "clearly guilty." The 5th amendment makes exactly one exception, which applies only to the military, only during a time of war or danger to the public, and has nothing to do with self-incriminating.
"No person shall be...compelled in any criminal case to be a witness against himself..."
Nothing in there about being "reasonable" or about being "clearly guilty." The 5th amendment makes exactly one exception, which applies only to the military, only during a time of war or danger to the public, and has nothing to do with self-incriminating.
First, I'm not talking about this case specifically, but rather responding to the top level poster's general comment about peoples' rights being protected.
Second, even in the absence of wiggle words, there is the issue of how broadly to interpret the protection. Read literally, the text only prohibits "compelling" a person "to be a witness against himself" (i.e. a compelled confession admissible into evidence). Extending the protection more broadly than that is an act of judicial balancing.
Second, even in the absence of wiggle words, there is the issue of how broadly to interpret the protection. Read literally, the text only prohibits "compelling" a person "to be a witness against himself" (i.e. a compelled confession admissible into evidence). Extending the protection more broadly than that is an act of judicial balancing.
Why do your PD friends care so much about protecting the rights of their "clearly guilty" clients? It's because protecting the guilty's rights ensures the innocent's rights are protected too.
The trope here is the suggestion that criminals are getting off on technicalities. As you've illustrated with Miranda, even with the improperly-obtained evidence suppressed, he was still convicted. The government doesn't need to violate people's rights to keep criminals off the streets. And perhaps there would be fewer of those pesky appeals if the state did things right the first time.
Of course most 4th amendment decisions concern guilty people - the remedy for 4th amendment violations is suppression, so you never hear about the innocent people who are harassed by police with illegal searches - no evidence is found so there's no case with evidence to suppress! (Civil action is an uphill battle even for those who are able to bring it.)
The trope here is the suggestion that criminals are getting off on technicalities. As you've illustrated with Miranda, even with the improperly-obtained evidence suppressed, he was still convicted. The government doesn't need to violate people's rights to keep criminals off the streets. And perhaps there would be fewer of those pesky appeals if the state did things right the first time.
Of course most 4th amendment decisions concern guilty people - the remedy for 4th amendment violations is suppression, so you never hear about the innocent people who are harassed by police with illegal searches - no evidence is found so there's no case with evidence to suppress! (Civil action is an uphill battle even for those who are able to bring it.)
> Why do your PD friends care so much about protecting the rights of their "clearly guilty" clients? It's because protecting the guilty's rights ensures the innocent's rights are protected too.
It's not a matter of protecting the rights of guilty people or not, but determining how much to protect them. Every procedural protection has a cost. If a procedural protection might be invoked by a person who has a 10% chance of being innocent, then maybe it's worth the cost. If it's more likely to be invoked by a person who has a 1% chance of being innocent, then maybe it's not. Looking only at media reports gives you a distorted picture of what those probabilities are.
> The trope here is the suggestion that criminals are getting off on technicalities.
I didn't say they were getting off on technicalities. I said they were trying to get off on technicalities.
"Better to let a 100 guilty men go free than 1 innocent man go to jail" makes for good rhetoric, but even such flowery language implies a point at which its better to let 1 innocent man go to jail than let a certain number of guilty men go free.
It's not a matter of protecting the rights of guilty people or not, but determining how much to protect them. Every procedural protection has a cost. If a procedural protection might be invoked by a person who has a 10% chance of being innocent, then maybe it's worth the cost. If it's more likely to be invoked by a person who has a 1% chance of being innocent, then maybe it's not. Looking only at media reports gives you a distorted picture of what those probabilities are.
> The trope here is the suggestion that criminals are getting off on technicalities.
I didn't say they were getting off on technicalities. I said they were trying to get off on technicalities.
"Better to let a 100 guilty men go free than 1 innocent man go to jail" makes for good rhetoric, but even such flowery language implies a point at which its better to let 1 innocent man go to jail than let a certain number of guilty men go free.
I guess the problem is there's no such a thing as a person having "a 10% chance of being innocent" Either he is or he is not. He might have certain probability of being declared guilty (which is entirely different), but I don't think there's a way to estimate that.
BTW 99% is a very low accuracy. If we accepted that for aircraft, 13 would crash weekly.
BTW 99% is a very low accuracy. If we accepted that for aircraft, 13 would crash weekly.
what a dangerous precedent you are setting, PD friends acting as judge and jury.
Laws change, and there are often subtleties to a law that make rash statements made by some PD friend with likely no more than a GED about "clear guilt" absurd. Even the simplest of laws aren't clear when looked at in detail.
This is why we have advocates with specific knowledge in these areas, and why judges hear briefs explaining the nuances of law, as it applies to a case. There just is no such thing as "clearly guilty"
Laws change, and there are often subtleties to a law that make rash statements made by some PD friend with likely no more than a GED about "clear guilt" absurd. Even the simplest of laws aren't clear when looked at in detail.
This is why we have advocates with specific knowledge in these areas, and why judges hear briefs explaining the nuances of law, as it applies to a case. There just is no such thing as "clearly guilty"
> what a dangerous precedent you are setting, PD friends acting as judge and jury.
Nobody is acting as judge and jury. PD's are charged with zealously representing their clients just like any other lawyer, and the ones I know are extremely committed to their jobs (many turned down six figure jobs in private practice to work for state government salaries and defend poor people). They fight hard for their clients, even the "clearly guilty" ones. But that doesn't mean they're not allowed to make observations about the nature of the world.
> Laws change, and there are often subtleties to a law
We're not talking about subtleties here. We're talking about people who rob a liquor store, have people see them do it, have video evidence of them doing it... That's the bread and butter of the criminal justice system.
When you see edge cases in the news and rant about how broken the system is for not taking even more measures to protect the innocent, remember that the vast majority of people who go through the justice system really did do the crimes they're accused of committing, and that factual state of affairs influences how the system is structured. If a lot more of the people who come up before judges each day were innocent in fact, the system would be structured differently.
Nobody is acting as judge and jury. PD's are charged with zealously representing their clients just like any other lawyer, and the ones I know are extremely committed to their jobs (many turned down six figure jobs in private practice to work for state government salaries and defend poor people). They fight hard for their clients, even the "clearly guilty" ones. But that doesn't mean they're not allowed to make observations about the nature of the world.
> Laws change, and there are often subtleties to a law
We're not talking about subtleties here. We're talking about people who rob a liquor store, have people see them do it, have video evidence of them doing it... That's the bread and butter of the criminal justice system.
When you see edge cases in the news and rant about how broken the system is for not taking even more measures to protect the innocent, remember that the vast majority of people who go through the justice system really did do the crimes they're accused of committing, and that factual state of affairs influences how the system is structured. If a lot more of the people who come up before judges each day were innocent in fact, the system would be structured differently.
"PD friend with likely no more than a GED"
PD here means "public defender": a lawyer. Did you perhaps think it meant "police dept"?
PD here means "public defender": a lawyer. Did you perhaps think it meant "police dept"?
He clearly did think that.
> I'm sorry to break it to you, but most people the police catch are "clearly guilty.
I'm sorry to break it to you, no they aren't; and I was a cop. Most cops don't give a rats ass if you're guilty or not, only if they get a bust, they're chasing numbers generally handed down unofficially through their supervisors and they have targets to hit. They care only that can bust you, not that they should or not and quite often ignore anything that might prevent them from getting a bust.
All cops; no, but a majority in my experience. I became a programmer because I couldn't stand being around them or socializing with them because they really are mostly dumb fucking pigs who don't give a shit about your rights.
I'm sorry to break it to you, no they aren't; and I was a cop. Most cops don't give a rats ass if you're guilty or not, only if they get a bust, they're chasing numbers generally handed down unofficially through their supervisors and they have targets to hit. They care only that can bust you, not that they should or not and quite often ignore anything that might prevent them from getting a bust.
All cops; no, but a majority in my experience. I became a programmer because I couldn't stand being around them or socializing with them because they really are mostly dumb fucking pigs who don't give a shit about your rights.
Isn't the case in the story also one of "technicalities," since the police seem reasonably sure the material is on one of the drives, just not exactly which one?
People who clerk have a skewed view of the judicial system compared to someone who has been convicted.
People who clerk have a skewed view of the judicial system compared to someone who has been convicted.
People who clerk have a skewed view of the judicial system compared to someone who has been convicted.
No they don't, just a different one. Read a lot of appeals and it's obvious that a lot of the arguments are completely, utterly bogus. There are technicalities that are unfair to people who are appealing, like having appeals rejected for failure to timely file when the appellant didn't have access to admissible evidence in time to file, and so forth. Those are the kind of cases that tend to work their way up through en banc review and onto the SC eventually.
But a lot of other appeals are so ridiculous as to be desperate or amount to judicial trolling. The fact is that some prisoners have nothing better to do than file appeals to make the time go by faster.
No they don't, just a different one. Read a lot of appeals and it's obvious that a lot of the arguments are completely, utterly bogus. There are technicalities that are unfair to people who are appealing, like having appeals rejected for failure to timely file when the appellant didn't have access to admissible evidence in time to file, and so forth. Those are the kind of cases that tend to work their way up through en banc review and onto the SC eventually.
But a lot of other appeals are so ridiculous as to be desperate or amount to judicial trolling. The fact is that some prisoners have nothing better to do than file appeals to make the time go by faster.
> People who clerk have a skewed view of the judicial system compared to someone who has been convicted.
I'd argue it's a much less biased view that incorporates more and better information.
I'd argue it's a much less biased view that incorporates more and better information.
I am pretty sure clerks are seeing only a fraction of the people who were arrested or convicted, and that that fraction is strongly biased towards people who have money to spend on lawyers. The overwhelming majority of the millions of prisoners we have in America never had a trial.
I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.
I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.
> I am pretty sure clerks are seeing only a fraction of the people who were arrested or convicted, and that that fraction is strongly biased towards people who have money to spend on lawyers.
The bulk of nearly any judge's case load is criminal appeals from run of the mill criminals. They might be pro se, they might have a public defender, they might have a cheap local lawyer, but they're not deep pocketed by any means. Indeed, clerks see a skewed picture of things, but one that is if anything skewed towards seeing fewer actually guilty people, not more, for the obvious reason that actually innocent people are more likely to file an appeal than actually guilty ones.
> I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.
The purpose of the criminal justice system is to protect the law-abiding public by putting criminals in prison. That is its sole reason for existing. An important constraint in doing so is protecting the innocent, but that's not its purpose. If it were, then you could design the perfect justice system simply by never putting any people in prison. But the world has bad people, lots of them, and that's not a tenable option.
You design a justice system the same way you design any system. You pick a false-positive rate you can live with, then design the rest of the system to maximize throughput while still hitting that false-positive target. It's the only sane way to design something that works as opposed to a non-working platonic ideal.
The bulk of nearly any judge's case load is criminal appeals from run of the mill criminals. They might be pro se, they might have a public defender, they might have a cheap local lawyer, but they're not deep pocketed by any means. Indeed, clerks see a skewed picture of things, but one that is if anything skewed towards seeing fewer actually guilty people, not more, for the obvious reason that actually innocent people are more likely to file an appeal than actually guilty ones.
> I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.
The purpose of the criminal justice system is to protect the law-abiding public by putting criminals in prison. That is its sole reason for existing. An important constraint in doing so is protecting the innocent, but that's not its purpose. If it were, then you could design the perfect justice system simply by never putting any people in prison. But the world has bad people, lots of them, and that's not a tenable option.
You design a justice system the same way you design any system. You pick a false-positive rate you can live with, then design the rest of the system to maximize throughput while still hitting that false-positive target. It's the only sane way to design something that works as opposed to a non-working platonic ideal.
I served on a jury late last year [1] and the defendant invoked his 5th-amendment right. It was emphasized over and over again during the jury selection and in the instructions to the jury before we deliberated that we were not to hold this against him, and that it was his constitutional right. I feel confident that as the jury, we held to that.
[1]: By the way, if you get called for jury duty do not try to get out of it! It's an incredibly interesting and rewarding experience, not to mention the whole thing where it's your duty as a citizen.
[1]: By the way, if you get called for jury duty do not try to get out of it! It's an incredibly interesting and rewarding experience, not to mention the whole thing where it's your duty as a citizen.
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This is the same scare tactic they always tout to take away your rights with. The Canadian government said the exact same thing last year while promoting their internet spying bill. It's garbage.
Whether there is an agenda by lobbying groups or other interests in increasing surveillance or just federal agencies need more power and funding to "protect", the effects are predictable -- make a showcase example using some horrible crime (terrorism, child pornography, in the past maybe communism or drug war related). It doesn't matter as long there would be maximum rage against the perpetrator and nobody in the public sphere would dare defend them and still remain standing as a public or political figure.
People like stories and laws are slowly eroded by scary stories. Joe-Smith-child-pornographer and Molly-Johnson-the-terrorist cases are brought as examples of the evil of encryption and anonymity. It is very easy, the script is always the same.
Again not saying there is top down shadow conspiracy to all this just how the constraints and incentives are set up these things emerge as a result.
People like stories and laws are slowly eroded by scary stories. Joe-Smith-child-pornographer and Molly-Johnson-the-terrorist cases are brought as examples of the evil of encryption and anonymity. It is very easy, the script is always the same.
Again not saying there is top down shadow conspiracy to all this just how the constraints and incentives are set up these things emerge as a result.
This is one of those issues that leaves you arguing with yourself ... I'm 100% against child pornography (or really the exploitation of anyone), but 100% for rights to privacy, both digitally and in "in real life".
We can only hope that if this suspect is guilty, they find evidence that can be obtained without violating his rights ... and of course if he's innocent, I hope he avoids the stigma being a suspect might bring.
We can only hope that if this suspect is guilty, they find evidence that can be obtained without violating his rights ... and of course if he's innocent, I hope he avoids the stigma being a suspect might bring.
This is not about privacy, it's about self incrimination which is far, far more important.
You can be compelled to testify under oath for many reasons none of which involve doing anything wrong. When you testify under oath, you must answer the questions asked truthfully or face unlimited jail-time for contempt.
The fifth amendment is the only form of protection you have from being called to testify and being grilled about any random topic. It's a balance to the otherwise tremendous power that a court has.
The prosecution must be able to make their case without the defendants assistance. This is a fundamental aspect of our legal system.
You can be compelled to testify under oath for many reasons none of which involve doing anything wrong. When you testify under oath, you must answer the questions asked truthfully or face unlimited jail-time for contempt.
The fifth amendment is the only form of protection you have from being called to testify and being grilled about any random topic. It's a balance to the otherwise tremendous power that a court has.
The prosecution must be able to make their case without the defendants assistance. This is a fundamental aspect of our legal system.
Unfortunately it seems that discovery and testimony have become increasingly conflated over time. I don't buy the arguments that compelling someone to decrypt something is discovery rather than testimony. The precedent that tips the scale between discovery and testimony hinges on whether the prosecution "knows" that the data is there, which is bogus to begin with precisely because the supposed data is encrypted. They couldn't possibly "know" what is there without compelling the defendant to decrypt. And if there is already "sufficient evidence" to tie a defendant to supposed encrypted data, as has come up in certain cases, than there is no need to compel the defendant to decrypt in the first place. Provide your "sufficient evidence" to the court and let the judge and jury do their jobs.
I think precedent leaned this way precisely because people understood that otherwise, guilty people would definitely walk. And they couldn't have that, even if it meant that the spirit of the 5th amendment was violated.
I think precedent leaned this way precisely because people understood that otherwise, guilty people would definitely walk. And they couldn't have that, even if it meant that the spirit of the 5th amendment was violated.
The problem from the stigma point of view is that, even if our better judgement is saying "stand up for your privacy rights, even if you have nothing to hide", our (or at least my) brain is also saying "if he was innocent he wouldn't have a problem un-encrypting the drive(s) for them".
That's in my head, despite the fact that I am well aware that he could be taking a moral stand, or he could have stuff on those drives which he doesn't want to be seen for reasons completely unrelated to child pornography (maybe photos of his mistress which his wife doesn't know about, maybe profit spreadsheets from his drug-dealing... etc.)
So if he is innocent, I imagine the stigma will be there regardless, assuming people hear about the case at least.
That's in my head, despite the fact that I am well aware that he could be taking a moral stand, or he could have stuff on those drives which he doesn't want to be seen for reasons completely unrelated to child pornography (maybe photos of his mistress which his wife doesn't know about, maybe profit spreadsheets from his drug-dealing... etc.)
So if he is innocent, I imagine the stigma will be there regardless, assuming people hear about the case at least.
The stigma comes from an attitude that the judicial system's responsibility is to produce convictions, so it appears that defendants who are not convicted are merely certainly-guilty people against whom the prosecution didn't have the tools necessary to convict. Down this path lies lowered standards for due process and evidence and a higher incidence of false positives.
the judicial system's responsibility is to produce convictions
No, that's the responsibility of prosecutors. Trial courts are 'finders of fact,' whether or not those facts suit the prosecution.
No, that's the responsibility of prosecutors. Trial courts are 'finders of fact,' whether or not those facts suit the prosecution.
Please read more closely before replying. You missed rhizome's point entirely.
I'm not sure that I agree with him about the widespread existence of this attitude, though.
In a system that purports to consider suspects innocent until proven guilty, why is there stigma when the suspect is not proven guilty? The suspicion that they are actually guilty supersedes the idea that law enforcement (incl. the prosecutor) is fallible. The stigma derives from an authoritarian mindset in this way.
Yes, but that's a feature of human psychology. A lot of people are authoritarians, and in a society where free speech is constitutionally protected they enjoy the right to trumpet their opinions about the likely guilt of people being acquitted.
So would you agree that "innocent until proven guilty" is basically a lie, since "human psychology" drives society to consider suspects to be always-guilty regardless of the outcome of the accusation? At any rate, the stigma being discussed in this thread derives from this tendency of society, innate to its members or not.
No, of course not. A court can acquit someone but it can't control how everyone thinks about the process. If a certain percentage of the population are authoritarians who believe the police are always right and defense lawyers are always tricksy shysters, there's not much the court can do about it other than acknowledging the facts that point to an acquittal.
You can lead a horse to water, but you can't make him drink.
You can lead a horse to water, but you can't make him drink.
What do you mean "if" a certain percentage of the population are authoritarians? You just described authoritarianism as (as I interpret you) basic human nature. However, I think it's cultural, so there is more to do than to throw ones hands up in powerlessness, and it has to do with the assumptions people make about the legal system (as I described). Stigma is not an innate attribute like a freckle.
Regardless, we could have shortened this thread considerably if you'd just said "eh, whaddya gonna do?" up front.
Regardless, we could have shortened this thread considerably if you'd just said "eh, whaddya gonna do?" up front.
You just described authoritarianism as (as I interpret you) basic human nature.
I said 'a lot of people are authoritarians,' not that it was inherent. It varies from country to country, eg I think Swedes are somewhat less authoritarian than Americans in the aggregate.
I said 'a lot of people are authoritarians,' not that it was inherent. It varies from country to country, eg I think Swedes are somewhat less authoritarian than Americans in the aggregate.
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The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.
-H. L. Mencken
Question-
I had a idea about how to make this type of punishment non feasible.
Replace the standard truecrypt bootloader with one of a design that has a 'self destruct'
What I mean by that is, when you turn on your computer and the boot loader is initialized it actually deletes its keyfile from disk and only keeps it in ram. If you dont enter the correct password in xxx minutes or if you restart the computer, that data is lost and restoring it becomes impossible.
There could be another option as well, a 'extra' unlock code that you could not prove the existence of, which could overwrite the deletion of the above.
Basically its a way to say "The FBI turned on my computer without asking me for instructions and destroyed my data- Its not possible for me to restore it, but this WAS my password"
I had a idea about how to make this type of punishment non feasible.
Replace the standard truecrypt bootloader with one of a design that has a 'self destruct'
What I mean by that is, when you turn on your computer and the boot loader is initialized it actually deletes its keyfile from disk and only keeps it in ram. If you dont enter the correct password in xxx minutes or if you restart the computer, that data is lost and restoring it becomes impossible.
There could be another option as well, a 'extra' unlock code that you could not prove the existence of, which could overwrite the deletion of the above.
Basically its a way to say "The FBI turned on my computer without asking me for instructions and destroyed my data- Its not possible for me to restore it, but this WAS my password"
In reality, forensic data people tend to just pop the drive out of the machine and connect it to a specialized machine that can clone the drive, whilst ensuring there is no write capability, so it is guarenteed to not modify the drives contents. This is done to preserve the "chain of custody", so the investigators can't be accused of fiddling with the evidence.
I think that the only way to do it would be to have something like a fully RAM disk, that is erased when power is lost. But this is problematic because of power outages, so you would be tempted to use battery backups or something, which would in turn make the system transportable, and more likely to not be deleted.
I guess in the case of the article, it was TSA agents, so your proposed system could do the trick with incompetants.
I think that the only way to do it would be to have something like a fully RAM disk, that is erased when power is lost. But this is problematic because of power outages, so you would be tempted to use battery backups or something, which would in turn make the system transportable, and more likely to not be deleted.
I guess in the case of the article, it was TSA agents, so your proposed system could do the trick with incompetants.
As shitlord mentioned, this is a mistake waiting to happen, (although a random USB/CD somewhere with a copy of the key could resolve that issue). The bigger problem is that I doubt the FBI are that stupid. My guess is they clone the harddrive before doing anything on it.
Even on a 'normal' computer, there is likely minimal benifit to booting normally as a first step; because you will likely run into an OS password. The simplest thing (I guess) is that they routinely remove the HD, clone it, and look at it on another computer, then probably remove the user password and boot it to see what the user would see.
Even on a 'normal' computer, there is likely minimal benifit to booting normally as a first step; because you will likely run into an OS password. The simplest thing (I guess) is that they routinely remove the HD, clone it, and look at it on another computer, then probably remove the user password and boot it to see what the user would see.
In reality, that would end up being a disaster. What if a friend or family member turned on your computer to check their email or print their airplane flight pass? They'd give up after seeing the password prompt, and if they don't tell you about it, then all of your data is gone forever.
You'd probably need to hide custom firmware in the drive to stop them from simply copying the whole thing. And if that became common they'd just start pulling out the platters and reading them in another drive.
They take the computer and mirror the drive. This doesn't help
I wonder why people place themselves in a position where it's possible for them to decrypt the drives under coercion. If I wanted to secure something and I thought that I might be under coercion at any point, then I'd stick part of my key files on a system that would delete them if it didn't get the all clear, and have another part that I could destroy in an off hand manner - maybe by smashing a USB key with a hammer or burning a bit of paper with an QR code or something on it,.
"Unencrypt that." "No longer possible."
Whether I'd have backups somewhere, well, who knows. But it's certainly possible to imagine systems under which the likely actions of an attacker such as the police would render the files useless.
"Unencrypt that." "No longer possible."
Whether I'd have backups somewhere, well, who knows. But it's certainly possible to imagine systems under which the likely actions of an attacker such as the police would render the files useless.
Isn't destroying evidence obstruction of justice?
I don't know, though I believe so. Burning your keys seems the most likely to count (unless done by some automated mechanism). The time thing I'm not so sure would count though.
A) Are the encrypted files actually evidence of an offence -- without decrypting them how can that argument be made?
B) Do you encryption keys count as evidence if the passwords in your head don't, and if the passwords in your head do count as evidence then how can not handing them over not count as obstruction of justice?
C) Is there a more general case that can be made such as you don't have the requisite mens rea to be guilty? I believe the terms go something like:
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."
If you just have a general commitment that you're not going to turn something over if under duress, does that count? And, if you can't do it and actually are guilty, is obstruction going to get you a lesser penalty anyway?
I imagine this is why encryption doesn't count as obstruction, since you have a general commitment that your stuff be difficult to read by anyone, rather than a specific grudge with the police.
By way of mitigating your risk, you might even be able to tell the police, in recorded interview, that you needed access to a computer in the next - whatever time period - to preserve the evidence that will prove your innocence. I doubt some low-level investigator, who probably doesn't understand the first thing about computers, is going to get you access to a computer in a reasonable time-frame, so by the time they've decided one way or the other it will be too late. I don't know how interview recordings work out in terms of evidence that the defence has access to though.
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It's really something I suspect you'd have to talk to a local lawyer about if you wanted a reasonable answer.
A) Are the encrypted files actually evidence of an offence -- without decrypting them how can that argument be made?
B) Do you encryption keys count as evidence if the passwords in your head don't, and if the passwords in your head do count as evidence then how can not handing them over not count as obstruction of justice?
C) Is there a more general case that can be made such as you don't have the requisite mens rea to be guilty? I believe the terms go something like:
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."
If you just have a general commitment that you're not going to turn something over if under duress, does that count? And, if you can't do it and actually are guilty, is obstruction going to get you a lesser penalty anyway?
I imagine this is why encryption doesn't count as obstruction, since you have a general commitment that your stuff be difficult to read by anyone, rather than a specific grudge with the police.
By way of mitigating your risk, you might even be able to tell the police, in recorded interview, that you needed access to a computer in the next - whatever time period - to preserve the evidence that will prove your innocence. I doubt some low-level investigator, who probably doesn't understand the first thing about computers, is going to get you access to a computer in a reasonable time-frame, so by the time they've decided one way or the other it will be too late. I don't know how interview recordings work out in terms of evidence that the defence has access to though.
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It's really something I suspect you'd have to talk to a local lawyer about if you wanted a reasonable answer.
It depends on the intent. If you create the system explicitly to destroy evidence if the police are looking for it then yes. If, instead, you create a "safe" that as an anti-tamper measure destroys the contents, then no (BUT IANAL).
In the UK, that would qualify as destruction of evidence 9/10 times. Source: Looked into doing something similar to protect confidential information and sought legal advice first.
This seems somewhat narrow, unfortunately. Suppose I have a laptop with an encrypted hard drive, and I'm known to use that laptop. It's going to be hard to convince someone that I don't own the laptop and drive, so it seems like the government could still compel me to decrypt it.
Of course, this would protect me if I happen to have encrypted hard drives scattered randomly around, but that's not typically how one would store data.
Of course, this would protect me if I happen to have encrypted hard drives scattered randomly around, but that's not typically how one would store data.
Obviously it comes down to the judge's judgement call (no pun intended) but based on this ruling there could perhaps be other ways to cause doubt which lead to this ruling, for example could you argue that your laptop has the ability for you to use it without unencrypting said drive, while potentially allowing one or more other people to use the encrypted part? Or if you are using encrypted files (e.g. TrueCrypt but not encrypting an entire drive) then having multiple encrypted files, perhaps even labelled in a way to suggest multiple users, such as stored in a folder called "Shared storage"?
Obviously all these things would need to look like they were genuine rather than thought-up for legal purposes, so I imagine if I ever ended up in this situation this comment might act against me... but as a non-American, the fifth is unlikely to be relevant anyway. On top of the fact that I currently have no encrypted drives.
Even without circumstantial suggestions that there are multiple options, I wonder if you could simply make the argument that possession of a single encrypted drive does not indicate usage of said drive, and therefore there is no reason to believe you have access to the encrypted contents?
Obviously all these things would need to look like they were genuine rather than thought-up for legal purposes, so I imagine if I ever ended up in this situation this comment might act against me... but as a non-American, the fifth is unlikely to be relevant anyway. On top of the fact that I currently have no encrypted drives.
Even without circumstantial suggestions that there are multiple options, I wonder if you could simply make the argument that possession of a single encrypted drive does not indicate usage of said drive, and therefore there is no reason to believe you have access to the encrypted contents?
Say, for the sake of argument, that I have an external SSD with 5 partitions, 2 of which are filled with random data (passing a chi-square test), the remaining 3 are TrueCrypt volumes.
The way I understand it, I have plausible deniability that I have any encrypted data on this disk. Failing that, wouldn't being forced to divulge which of the partitions are actual encrypted volumes be self-incrimination?
The way I understand it, I have plausible deniability that I have any encrypted data on this disk. Failing that, wouldn't being forced to divulge which of the partitions are actual encrypted volumes be self-incrimination?
The issue with that idea is that you have to be 100% confident that Trucrypt does not leave behind artifacts that point to the non-dummy partitions, including things like "recently accessed documents" or indices created by the OS to speed up document/file searching.
You have plausible deniability for any single disk (assuming their is no info leak through other channels, (and possibly technicalities with TrueCrypt). However, you will have a difficult time claiming that they are all random, especially because you would be set up to run TrueCrypt.
The best approach I have heard is to have 2 TrueCrypt volumes, but claim you only have 1. You still have to be careful about data leaks, and making your 'one' look convincing.
Also, yes, you cannot be forced to give them your decryption keys.
The best approach I have heard is to have 2 TrueCrypt volumes, but claim you only have 1. You still have to be careful about data leaks, and making your 'one' look convincing.
Also, yes, you cannot be forced to give them your decryption keys.
It's kinda weird that they took care to not mention his name in the article, but they say his last name in the quotes by the Judge.
The judges statements will already be in the public record, but I'm glad they're not mentioning his name prior to a conviction.
Tomphoolery's point was that his name was included in the Judge's statements quoted in this article, i.e. that even though they avoided using it in the text they wrote themselves, the article still included it.
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Apparently some think that the root password to the US Constitution is "4daChildr3n"
It would be more accurate to say "Fifth Amendment shields child porn suspect from proving a hard drive's data belongs to him by showing he can decrypt it."