This should make a fun Supreme Court case.

[quade 4]

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Judge: Americans can be forced to decrypt their laptops

Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21--or face the consequences including contempt of court.

Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be "compelled in any criminal case to be a witness against himself," which has become known as the right to avoid self-incrimination.

Source:
http://news.cnet.com/8301-31921_3-57364330-281/judge-americans-can-be-forced-to-decrypt-their-laptops/

That's some pure BS right there.

quade -
The World's Most Boring Skydiver

[mnealtx 0]

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That's some pure BS right there.

Agreed...and hopefully the Supremes will reverse the decision.

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Today's ruling from Blackburn sided with the U.S. Department of Justice, which argued, as CNET reported last summer, that Americans' Fifth Amendment right to remain silent doesn't apply to their encryption passphrases.

From the prior report:

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The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

I wonder why it was so important for McCullagh to mention who appointed the judge in *this* article about the case, however, when the decision is in agreement with DOJ.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[Bertt 0]

The judge wants me to decrypt my hard drive and tell the cops what's on it?? Uh, sure, but I think it's just some cookie and pie recipes.
Would you like me to search my closet and tell you if there's any contraband in there while I'm at it?

You don't have to outrun the bear.

[DiverMike 5]

I think you might be missing the point. She voluntarily gave the authorities the hard drive. What she is being asked to do is incriminate herself by giving the authorities the decryption key. That is not reasonable.

It would be like making Al Capone tell the authorites what all the secret codes in his ledger meant. If the authorities can figure it out on their own, it would be fair game.

For the same reason I jump off a perfectly good diving board.

[SethInMI 174]

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As long as a warrant is issued this would be no different than the police having to get in your house to serve a search warrant.

To me a better comparison seems to be the police search your house and find a safe deposit key or a note that says "the safe combination is 64-23-34" and then ordering you to tell them where the safe deposit box or safe is located.

In that case they have the "password", but not the "data". In the hard drive case, they have the data and not the password. In either case it feels like a 5th amendment issue.

Seth

It's flare not flair, brakes not breaks, bridle not bridal, "could NOT care less" not "could care less".

[SethInMI 174]

Ok I actually read the cnet article. Even reading that brief overview shows how tangled this is.

A quote:

"Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings."

The woman was not being asked to tell the password, but to type it in and unlock the hard drive, so that would be a close analogy to providing a key to a safe, which according to the article is established law. I wonder if that existing law extends to combination safes instead of keyed safes?

It's flare not flair, brakes not breaks, bridle not bridal, "could NOT care less" not "could care less".

[Southern_Man 0]

She should go to jail for contempt rather than revealing her encrypted password. Civil liberties for all.

I would wager the Supremes will overturn this one but one never knows.

"What if there were no hypothetical questions?"

[lawrocket 3]

It is tangled. But I tend to err on the side of protecting the individual from the government.

I do not see any comparison to fingerprints or DNA. Those are items that do nothing more than identify the person. As opposed to encryption of data. Those are statements of a person’s mind and recollection. The prosecution is seeking to compare data about a person to data created by a person.

I think there is a huge difference.

My wife is hotter than your wife.

[rehmwa 2]

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It is tangled. But I tend to err on the side of protecting the individual from the government.

I do not see any comparison to fingerprints or DNA. Those are items that do nothing more than identify the person. As opposed to encryption of data. Those are statements of a person’s mind and recollection. The prosecution is seeking to compare data about a person to data created by a person.

I think there is a huge difference.

So, before there were hard drives, there were paper records.

When a search warrant was issued, they could come inside and take the file cabinet.

1 - If it was locked, could the authorities break the lock and review the records?

2 - If it was a safe, did they have the legal authority to crack the locked safe?

3 - How are these records any different other than they apparently have a better lock?

4 - or is this even more clever - it's analogous to a safe that has an incendiary device against tampering........So if the authorities could crack the safe, then no problem, but if they couldn't, were they authorized to compel the suspect to open it for them????

(I don't know the answer to 1 and 2? not a lawyer here)

Or do they just need to find better encryption breakers?????

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[lawrocket 3]

Yeah. They used to have the technology and ingenuity to break the codes and the ciphers, etc. Break a lock. Drill a safe. Etc.

Get a warrant to search the contents of a safe, then break into the safe. But were people ordered to open the safe or go to jail? Or translate this cipher or be imprisoned for contempt?

This is the difference.

My wife is hotter than your wife.

[SethInMI 174]

"A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed."

John Paul Stevens in a 1988 dissent. Other SCOTUS decisions refer to this analogy as well, according to this article Criminals should use combinations safes

The article also mentions the fact that encrypted information is nothing new, the founding fathers were familiar with and most likely used encrypted documents during the American Revolution to hide data from the British.

Seems to be a good analogy for encrypted drives.

It's flare not flair, brakes not breaks, bridle not bridal, "could NOT care less" not "could care less".

[rehmwa 2]

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Yeah. They used to have the technology and ingenuity to break the codes and the ciphers, etc. Break a lock. Drill a safe. Etc.

Get a warrant to search the contents of a safe, then break into the safe. But were people ordered to open the safe or go to jail? Or translate this cipher or be imprisoned for contempt?

This is the difference.

that's a tough one then. They are authorized to go get the containers, but they can only use the info if they are smarter than the suspect.


Seems it'll just breed smarter criminals?
Then is that worth it to protect all the rest of us?

I would lean to protecting the rest of us normally.

this will likely get worse before it gets better.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[Southern_Man 0]

Quote

Quote

Yeah. They used to have the technology and ingenuity to break the codes and the ciphers, etc. Break a lock. Drill a safe. Etc.

Get a warrant to search the contents of a safe, then break into the safe. But were people ordered to open the safe or go to jail? Or translate this cipher or be imprisoned for contempt?

This is the difference.

that's a tough one then. They are authorized to go get the containers, but they can only use the info if they are smarter than the suspect.


Seems it'll just breed smarter criminals?
Then is that worth it to protect all the rest of us?

Remember that there is no evidence that the hard drive or safe contains anything incriminating. It might well include information that is embarassing but either not illegal or not related to the conduct on which the search warrant was issued.

"What if there were no hypothetical questions?"

[rehmwa 2]

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Quote

that's a tough one then. They are authorized to go get the containers, but they can only use the info if they are smarter than the suspect.

Seems it'll just breed smarter criminals?
Then is that worth it to protect all the rest of us?

Remember that there is no evidence that the hard drive or safe contains anything incriminating. It might well include information that is embarassing but either not illegal or not related to the conduct on which the search warrant was issued.

Since you acknowledged there was a valid search warrant issued, then your point is....well....pointless.

you could just as well state -

Remember that there is no evidence that the "seized cardboard box of personal notes" contains anything incriminating.

The whole issue is about whether the suspect can be directed, legally, to open the box for the cops if the cops can't figure it out on their own.

("box", or "safe", or "locker", or "harddrive" - same thing, just varying degrees of difficulty for each for cops to do it on their own)



Unless you are actually trying to talk about unjustified warrants - but that's completely another topic


edit: I have another question. Are warrants very specific? Using the close box analogy - does the warrant have to specifically allow cops to open closed boxes or files? Are there warrants that only allow authorities to walk the premises and observe but not touch or rifle the property - vs just blanket warrants that allow going through the couch cushions and opening every container in sight????


Seems the question of "OH NO! that's embarrassing vs pertinent to the case!" is moot. the cops want to find the gun, not put you in jail for having pictures of yourself at Couch Freaks.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[kelpdiver 2]

What it all adds up to is if you want to keep information private, it's worth looking at TrueCrypt and their notes on "plausible deniability."

The trainer for Barry Bonds spend more time in jail for contempt than Barry would have if the Feds had an actual case.

[rehmwa 2]

I'm going to transfer everything to paper and then purchase a bunch of clever little chinese puzzle boxes to store it in.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[wolfriverjoe 1,523]

Quote

edit: I have another question. Are warrants very specific? Using the close box analogy - does the warrant have to specifically allow cops to open closed boxes or files? Are there warrants that only allow authorities to walk the premises and observe but not touch or rifle the property - vs just blanket warrants that allow going through the couch cushions and opening every container in sight????


Seems the question of "OH NO! that's embarrassing vs pertinent to the case!" is moot. the cops want to find the gun, not put you in jail for having pictures of yourself at Couch Freaks.

I was taught that the search warrant has to specify what they are looking for and where it is expected to be.

The "what" has to be pretty specific, at least as specific as they can get. If they know that they are looking for a rifle, it can't just be "a gun", for example. If they've done undercover buys of cocaine, it has to be cocaine, not just "narcotics."

The "where" has to be pretty specific too. Street address and as full of a description as they can provide (to include style and colors) if it's an entire house, sometimes it will specify a room or several rooms within a house (and they can't search outside the scope of the warrant).

And they have to exercise "reasonableness" in the search. They wouldn't be allowed to open desk drawers if the warrant was for a stolen piano.

But if they were looking for stolen jewelry, then the couch coushions, desk drawers, potential hidden compartments in the walls, food containers in the fridge and cupboards ect. are all fair game.

"There are NO situations which do not call for a French Maid outfit." Lucky McSwervy

"~ya don't GET old by being weak & stupid!" - Airtwardo

[SkyDekker 1,465]

Bit off topic, but I have always wondered if they are responsible for any damage done?

[kallend 2,150]

Well, I can see a new market for a double key encryption technology where one key "A" deciphers to the real data, and the other key "B" deciphers the same code to something harmless like a recipe book or a book of poetry. Should be easy enough. Then when you're busted you provide the "B" key.

...

The only sure way to survive a canopy collision is not to have one.

[wolfriverjoe 1,523]

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Well, I can see a new market for a double key encryption technology where one key "A" deciphers to the real data, and the other key "B" deciphers the same code to something harmless like a recipe book or a book of poetry. Should be easy enough. Then when you're busted you provide the "B" key.

Or a "B" key that deletes any incriminating data. That could be pretty handy. Kind of like a pyro charge inside a file cabinet that ignites and destroys everything if it's opened in a "normal" manner.

And Skydekker asked:

Quote

Bit off topic, but I have always wondered if they are responsible for any damage done?

My understanding is that as long as the warrant is valid, as long as the search is "reasonable" (yeah, I know that's a very subjective word) then probably not.

"There are NO situations which do not call for a French Maid outfit." Lucky McSwervy

"~ya don't GET old by being weak & stupid!" - Airtwardo

[rehmwa 2]

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My understanding is that as long as the warrant is valid, as long as the search is "reasonable" (yeah, I know that's a very subjective word) then probably not.

yeah, they need to fix the law to require the search to be "fair"

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[DaVinci 0]

Sounds like crap to me. The 5th should cover this in my non-lawyer opinion.