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Author Topic: Judge Orders Defendant to Decrypt Laptop  (Read 4970 times)
epbaha
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January 24, 2012, 03:58:26 PM
 #1

http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/

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January 24, 2012, 04:05:00 PM
 #2

It should be pointed out that they had a warrant.

It should also be pointed out that they had a ton of evidence that the evidence they were looking for was on the laptop. Including a jail house confession.


It should also be pointed out, that he would have been fine if he used truecrypt with the plausible deniability feature.. or a hidden volume inside of his encrypted volume.

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January 24, 2012, 04:17:29 PM
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Why doesn't the fifth amendment apply?

I'm not American, so I don't understand your strange ways, but as far as I can see, it should be: your warrant gives you access to the laptop; and if you can get what you want off it, good luck to you; but the moment the password passes my lips then I have self-incriminated.

Just as a warrant would get you access to my house; but I don't have to tell you were I hid the knife (assuming I am a knife-wielding stab fiend).

I don't suppose the constitution has much meaning these days; but it seems a little unfair does this.

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January 24, 2012, 04:17:37 PM
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It should also be pointed out, that he would have been fine if he used truecrypt with the plausible deniability feature.. or a hidden volume inside of his encrypted volume.

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January 24, 2012, 04:31:29 PM
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Why doesn't the fifth amendment apply?

I'm not American, so I don't understand your strange ways, but as far as I can see, it should be: your warrant gives you access to the laptop; and if you can get what you want off it, good luck to you; but the moment the password passes my lips then I have self-incriminated.

Just as a warrant would get you access to my house; but I don't have to tell you were I hid the knife (assuming I am a knife-wielding stab fiend).

I don't suppose the constitution has much meaning these days; but it seems a little unfair does this.


Because the 5th doesn't mean you can refuse the police your fingerprints, refuse a breathalyser or refuse the police access to search your property.  These are all examples of searches which are allowed, as is the requirement for a passkey for an encrypted hard drive.

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January 24, 2012, 09:47:11 PM
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Why doesn't the fifth amendment apply?

I'm not American, so I don't understand your strange ways, but as far as I can see, it should be: your warrant gives you access to the laptop; and if you can get what you want off it, good luck to you; but the moment the password passes my lips then I have self-incriminated.

Just as a warrant would get you access to my house; but I don't have to tell you were I hid the knife (assuming I am a knife-wielding stab fiend).

I don't suppose the constitution has much meaning these days; but it seems a little unfair does this.


Because the 5th doesn't mean you can refuse the police your fingerprints, refuse a breathalyser or refuse the police access to search your property.  These are all examples of searches which are allowed, as is the requirement for a passkey for an encrypted hard drive.

My fingerprints can be taken merely by forcibly holding my hand on a bit of inky paper.  Similarly a breathalyzer.  Passwords have to come out of my head.  Once you can flash a warrant to get something out of my head; why can't you simply flash one that says "you will admit you are guilty; we know you are"?

I'm only asking for interests sake; I'd always quite admired the American constitution (watching similar rights in the UK being dropped at the wave of a parliamentary pen) and am interested about where its boundaries fall.

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January 24, 2012, 10:07:38 PM
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I'm sorry officer, it's in my motor memory only, you'll need to bring me my specially marked keyboard.

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January 24, 2012, 10:20:21 PM
 #8

Your Honor,

 Ordering me to decrypt my laptop is like ordering me to remember something. My password was, (note: the past tense, your honor), memorized.  I can't remember the pass phrase.

And Your Honor, if the precedent is to be able to order someone to remember, wouldn't that apply to all, equally.  So all witnesses and defendants would not be able to say; "I don't remember."  

BTW: Your Honor, what was the License Plate number of your very first car?  YOU must answer. If your wrong, you're lying.

If I was to guess for you, Your Honor, I would guess: ASSHAT  Don't you love those specialty plates?



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January 24, 2012, 10:24:40 PM
 #9

I don't think breathalyzers are a good example because the constitution does not protect drunk driving suspects. It's a hideous little exception.
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January 24, 2012, 11:06:37 PM
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http://www.truecrypt.org/docs/?s=hidden-os
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January 25, 2012, 10:16:53 AM
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Your Honor,

 Ordering me to decrypt my laptop is like ordering me to remember something. My password was, (note: the past tense, your honor), memorized.  I can't remember the pass phrase.

And Your Honor, if the precedent is to be able to order someone to remember, wouldn't that apply to all, equally.  So all witnesses and defendants would not be able to say; "I don't remember."  

BTW: Your Honor, what was the License Plate number of your very first car?  YOU must answer. If your wrong, you're lying.

If I was to guess for you, Your Honor, I would guess: ASSHAT  Don't you love those specialty plates?




That really isn't an issue.  She was using the laptop when they entered her property so she still knows the password.

The lady needs to decide if she will do less time for the crime that the evidence on her laptop would convict her of or for obstructing justice by refusing to give the password.  Its just like a businessman who has to decide between burning his customer records or going to jail for tax evasion. 

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January 25, 2012, 10:28:42 AM
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The lady needs to decide if she will do less time for the crime that the evidence on her laptop would convict her of or for obstructing justice by refusing to give the password.  Its just like a businessman who has to decide between burning his customer records or going to jail for tax evasion. 

I think (IANAL though) that it's worse than that.  Contempt of court can be dished out again after the first sentence is served.

Your original trial can be on hold because you refused cooperate with court.  You serve your sentence, and then the original trial starts up again.  Then you get asked "what is the decryption password?" and if you don't answer, you will be found in contempt again.

So it's not really a choice; by being in contempt you are only adding to your eventual sentence.

Now... there is one get out; and that is that some more powerful judiciary declares that refusing to decrypt is protected.  You will still be in contempt though, and either an appeal or some patience will be needed.

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January 25, 2012, 10:34:43 AM
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The lady needs to decide if she will do less time for the crime that the evidence on her laptop would convict her of or for obstructing justice by refusing to give the password.  Its just like a businessman who has to decide between burning his customer records or going to jail for tax evasion. 

I think (IANAL though) that it's worse than that.  Contempt of court can be dished out again after the first sentence is served.

Your original trial can be on hold because you refused cooperate with court.  You serve your sentence, and then the original trial starts up again.  Then you get asked "what is the decryption password?" and if you don't answer, you will be found in contempt again.

So it's not really a choice; by being in contempt you are only adding to your eventual sentence.

Now... there is one get out; and that is that some more powerful judiciary declares that refusing to decrypt is protected.  You will still be in contempt though, and either an appeal or some patience will be needed.

That would be allowing people who use a computer to steal a protection that is not available to people who use a pen and paper to steal.  Why on earth would a judge do that? 

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January 25, 2012, 11:15:39 AM
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Now... there is one get out; and that is that some more powerful judiciary declares that refusing to decrypt is protected.  You will still be in contempt though, and either an appeal or some patience will be needed.

That would be allowing people who use a computer to steal a protection that is not available to people who use a pen and paper to steal.  Why on earth would a judge do that?  

I'm not saying they would; I'm saying that's the get out.

As to why they would...

You're looking at it entirely from the point of view of the criminal (which, to be fair, is exactly what governments always do).  There are two sides to these laws though... most people are not criminals.  Most people who use encryption are not criminals.  By enabling the government to demand decryption you are damaging the freedoms of those people who aren't criminal but value their privacy.  Some people argue that that damage is worse than the damage done by not being able to get at the guilty man's secrets.

Incidentally, this is exactly the same argument for innocent until proven guilty, which implicitly says that it's better to let a guilty man go free than imprison an innocent man.  I think I would say the same: it is better that the privacy of the innocent be protected than the guilty have their secrets forcibly extracted.

By the way: your analogy is flawed.  The equivalent of refusing to decrypt is that the person with the pen and paper secret has hidden the paper somewhere and refuses to tell the court where it is.

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January 25, 2012, 01:14:44 PM
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Now... there is one get out; and that is that some more powerful judiciary declares that refusing to decrypt is protected.  You will still be in contempt though, and either an appeal or some patience will be needed.

That would be allowing people who use a computer to steal a protection that is not available to people who use a pen and paper to steal.  Why on earth would a judge do that?  

I'm not saying they would; I'm saying that's the get out.

As to why they would...

You're looking at it entirely from the point of view of the criminal (which, to be fair, is exactly what governments always do).  There are two sides to these laws though... most people are not criminals.  Most people who use encryption are not criminals.  By enabling the government to demand decryption you are damaging the freedoms of those people who aren't criminal but value their privacy.  Some people argue that that damage is worse than the damage done by not being able to get at the guilty man's secrets.

Incidentally, this is exactly the same argument for innocent until proven guilty, which implicitly says that it's better to let a guilty man go free than imprison an innocent man.  I think I would say the same: it is better that the privacy of the innocent be protected than the guilty have their secrets forcibly extracted.

By the way: your analogy is flawed.  The equivalent of refusing to decrypt is that the person with the pen and paper secret has hidden the paper somewhere and refuses to tell the court where it is.


So we are in agreement - refusing to decrypt is the same as any other effort to hide evidence.  As such, the court must penalise it. 

BTW, you totally misunderstand what innocent until proven guilty means.  It does not mean that the guilty have some mysterious right to hide evidence - it means that the burden of proof is on the prosecution.

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January 25, 2012, 01:15:57 PM
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my password was written on a post it note. where is the post it note? Roll Eyes
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January 25, 2012, 02:35:42 PM
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So we are in agreement - refusing to decrypt is the same as any other effort to hide evidence.  As such, the court must penalise it. 

You're jumping about a little bit on what we're talking about.  I'm not saying that one is allowed and one isn't.  I'm saying they are both the same, and so the argument that "that would be allowing people who use a computer to steal a protection that is not available to people who use a pen and paper to steal." is not valid.

BTW, you totally misunderstand what innocent until proven guilty means.  It does not mean that the guilty have some mysterious right to hide evidence - it means that the burden of proof is on the prosecution.

I have understood entirely what it means.  In fact I think that I've thought about it more deeply than just "burden of proof".  I didn't say it gives you the right to hide evidence, I said that my argument for why "the fifth should be allowed" was analogous... I'll say it again, and try to be clearer...

"Innocent until proven guilty" recognises that more harm would be done by convicting the innocent than by not convicting the guilty -- i.e. society accepts that trade off; sometimes the guilty go free in order that the innocent are never incorrectly convicted.

I am similarly suggesting that society should accept that the harm done by denying completely innocent people the right to privacy outweighs the harm done by sometimes being unable to access evidence encrypted by the guilty.

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January 25, 2012, 04:48:13 PM
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...snip...

I am similarly suggesting that society should accept that the harm done by denying completely innocent people the right to privacy outweighs the harm done by sometimes being unable to access evidence encrypted by the guilty.


The most obvious breach of privacy is a search warrant.  I don't know if you have any experience of this but all your possessions are chucked about, your diaries are read, photo albums have pictures taken out to make sure there is nothing behind them, its a real griefing.

Unfortunately, its also a necessary tool to catch criminals.  If you regard having to show the contents of your computer as a breach of your privacy, wait and see how you feel when you have fat fools turning your bed over and mucking about in your wardrobe. 

You suggestion is that unless someone is found guilty, they should not suffer a breach of privacy.  That would simply mean that a burglar has only to lock the door of his apartment and he is free to carry on robbing unless caught in the act.  That's a bad idea.

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January 25, 2012, 05:09:38 PM
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Unfortunately, its also a necessary tool to catch criminals.  If you regard having to show the contents of your computer as a breach of your privacy, wait and see how you feel when you have fat fools turning your bed over and mucking about in your wardrobe. 

I would actually prefer to have people search my physical possessions. I wear my clothes in public, my bed is mundane, it's just stuff.

But my computer? That's where the REALLY private stuff is. It's that little alcove where the telescreen doesn't see, where I can write in peace before morning calisthenics.
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January 25, 2012, 05:12:09 PM
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This is clearly a breach of the 5th Amendment. IANAL either, but I am a rational human being with some common sense. When arrested, you're not obligated to lift a finger to help the prosecutors. You're (supposed to be) free to keep your mouth shut the entire time. But suddenly some judge thinks it's appropriate to require someone to aid their efforts at obtaining information?

Quote
nor shall be compelled in any criminal case to be a witness against himself

That judge's order is total BS, a trampling of the spirit and letter of the 5th, and just flat-out contemptible.

Makes me wonder when was the last time the judiciary got away with demanding someone produce a key to a lockbox, and holding them indefinitely until said key was produced.

"But your honor, I *thought* I put the key behind the shed, but I hid so many I honestly don't know where else it could be!"

"Well, that's just too bad for you, isn't it? Life in prison then, for the crime of refusing to self-incriminate. Case dismissed... and let us know when your memory decides to cooperate."

Total BS.

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