Judge Orders Defendant to Decrypt Laptop

[epbaha]

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

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[joulesbeef]

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.

[realnowhereman]

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.

[mila]

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.

this.

[Hawker]

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.

[realnowhereman]

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.

[FreeMoney]

I'm sorry officer, it's in my motor memory only, you'll need to bring me my specially marked keyboard.

[JusticeForYou]

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?

[Explodicle]

I don't think breathalyzers are a good example because the constitution does not protect drunk driving suspects. It's a hideous little exception.
http://www.duicenter.com/lectures/exception01.html

When you get arrested, say nothing to anyone whatsoever unless so directed by your lawyer. Period. Exclamation point!

[BrightAnarchist]

http://www.truecrypt.org/docs/?s=hidden-os

[Hawker]

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. 

[realnowhereman]

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.

[Hawker]

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? 

[realnowhereman]

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.

[Hawker]

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.

[max in montreal]

my password was written on a post it note. where is the post it note?

[realnowhereman]

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.

[Hawker]

...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.

[Explodicle]

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.

[westkybitcoins]

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?

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.

[casascius]

What if they turn over an unencrypted copy of whatever they feel like.  The recipient has no way to prove that what they were given was or was not the actual complete content of the drive.

[realnowhereman]

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.

You're putting words in my mouth.  My argument is that people should not suffer this additional breach of privacy -- we're talking about decrypting laptops, none of what you describe above comes under that category.

On their laptops, people keep their private correspondence, maybe a diary, maybe a list of all their passwords to web sites, maybe emails from their mistresses, maybe lots of gay porn that would out them, presidential death threats that they wrote but never sent, etc.  In short: their entire life is concentrated in one place; such is the power of modern technology.

I can understand a search warrant for my physical property -- look for all the physical evidence you want.  But to open up my laptop is to open up pretty much every part of my life; and I find that a bridge too far.

Obviously, my opinion is worthless; governments have always, and will continue to do whatever they like.  But requiring a password is to require knowledge that is in my head; and my belief is that the boundary of a search warrant's power should be my skull.

[JusticeForYou]

Obviously, my opinion is worthless; governments have always, and will continue to do whatever they like.  But requiring a password is to require knowledge that is in my head; and my belief is that the boundary of a search warrant's power should be my skull.

Agreed.

It is forcing testimony by threat of action. The 5th Amendment should apply but Judges are to old and don't understand computers for the most part. In another 20 Years, they will get replaced with a more understandable crowd of Judges.

I believe, the current Judges look at like a safe, they say open it or else.

I would still say: "I don't remember the password."   How do you prove her wrong? Even if she had it open when they arrived. The stress of them arriving must have caused a lapse in her memory.

It is time for the courts to catch up with technology. It was hoped they would do it by adapting but it seems they are staunchly protecting the status quo. Some of these cases are absurd.

 You have this file on your computer, so your guilty. If I was a devious lawyer with a client like that, I would email the Judge, Prosecutor, and the Jury the file.  Closing Arguments: If you find my client guilty ladies and gentlemen, you must also find yourselves guilty. Have you checked your email, lately.

[Hawker]

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?

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.

The last time that happened was the last time someone made such a ridiculous statement in court. 

Seriously, you think a judge is going to sit there and allow a common thief to keep his ill gotten gains just by pretending that he doesn't remember where he hid the money? 

[Hawker]

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.

...snip...

Obviously, my opinion is worthless; governments have always, and will continue to do whatever they like.  But requiring a password is to require knowledge that is in my head; and my belief is that the boundary of a search warrant's power should be my skull.

If someone robbed your computer, emptied your bitcoin wallet and you wanted your bitcoins back, you might feel a little differently when they say "Oh dear - I don't remember the password of my wallet.  I guess I just have to keep your money as otherwise it would be an invasion of my privacy." 

[JusticeForYou]

Seriously, you think a judge is going to sit there and allow a common thief to keep his ill gotten gains just by pretending that he doesn't remember where he hid the money?

  Your assumption is that he has already been found guilty. He is innocent until proven guilty.  And at least in this country, you can not be made to convict yourself.

Lets presume he is Innocent: Does him not wanting to allow it, make him Guilty?

Lets presume he is Guilty: Is he obliged to help the prosecutor find him Guilty?  If so, why do we need prosecutors? Fire them all, and lets just let the Judges find Guilt or Innocence. Might as well do away with Jurors too.

And the logic presented in your quote suggests that people don't forget things. The argument that 'it was important' so he shouldn't have forgotten is a false one.  (s) All the Husbands that have forgotten their Anniversary.

[JusticeForYou]

If someone robbed your computer, emptied your bitcoin wallet and you wanted your bitcoins back, you might feel a little differently when they say "Oh dear - I don't remember the password of my wallet.  I guess I just have to keep your money as otherwise it would be an invasion of my privacy."

Lets try another tactic:


Hawker, I remember you from somewhere. Oh, yea I did a BitCoin sale with you awhile back and you scammed me and kept my bitcoins without paying. Your a scammer. I want to see your wallet.dat file so I can prove it to the community that you are in fact a scammer. If you don't show me your wallet.dat file your ARE a scammer and deserving of the "Scammer Tag."

Your GUILTY.



^^note: This is not true but was used to prove an example case.

[Hawker]

If someone robbed your computer, emptied your bitcoin wallet and you wanted your bitcoins back, you might feel a little differently when they say "Oh dear - I don't remember the password of my wallet.  I guess I just have to keep your money as otherwise it would be an invasion of my privacy."

Lets try another tactic:


Hawker, I remember you from somewhere. Oh, yea I did a BitCoin sale with you awhile back and you scammed me and kept my bitcoins without paying. Your a scammer. I want to see your wallet.dat file so I can prove it to the community that you are in fact a scammer. If you don't show me your wallet.dat file your ARE a scammer and deserving of the "Scammer Tag."

Your GUILTY.



^^note: This is not true but was used to prove an example case.

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun. 

[JusticeForYou]

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun.

Assumptions might have been made on my part that might have confused the issue. ie. That you are a U.S. Citizen.

Many have gone to court and refused. Reporters for one, defendants for another, even witnesses. The biggest protections a citizen have here is the 1st and 5th amendments.

A court can and/has required reporters to give up sources. They refuse, if they want to stay a reporter.

A defendant is under no obligation to help the prosecutor convict himself. The knowledge that the judge seeks is in the defendants head. His 'words' / 'memory' are to be used against him.  Here is the catch, the vast majority think that him refusing makes him guilty because no one stands up for their rights anymore. He may just be an innocent standing up for his rights, or he may in fact be guilty but it is not his job to help the lynch mob to hang him.

 

[Explodicle]

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun.  

[Emphasis mine] Would you please elaborate? To me it almost looks like you're saying the exact purpose of courts is to force people to do pretty much anything regardless of human rights.

[ZodiacDragon84]

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.

...snip...

Obviously, my opinion is worthless; governments have always, and will continue to do whatever they like.  But requiring a password is to require knowledge that is in my head; and my belief is that the boundary of a search warrant's power should be my skull.

If someone robbed your computer, emptied your bitcoin wallet and you wanted your bitcoins back, you might feel a little differently when they say "Oh dear - I don't remember the password of my wallet.  I guess I just have to keep your money as otherwise it would be an invasion of my privacy." 

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

[JusticeForYou]

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

lol,

 I am sure their is a government sponsored biology lab somewhere working on that for a $1 Billion Grant. It wouldn't surprise me in the least.

[ZodiacDragon84]

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

lol,

 I am sure their is a government sponsored biology lab somewhere working on that for a $1 Billion Grant. It wouldn't surprise me in the least.

I Dunno. It's pretty scary upstairs for this guy! I'd hate to see what they dig up as my ghost watches in horror

[Hawker]

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun.  

[Emphasis mine] Would you please elaborate? To me it almost looks like you're saying the exact purpose of courts is to force people to do pretty much anything regardless of human rights.

You don't have a human right to steal stuff. If you have stolen stuff, you don't have a human right to hide the evidence.  Your whole outlook seems to be based on the idea that one can steal stuff and then hide behind a façade of human rights law.  Thats not the case.

[JusticeForYou]

You don't have a human right to steal stuff. If you have stolen stuff, you don't have a human right to hide the evidence.  Your whole outlook seems to be based on the idea that one can steal stuff and then hide behind a façade of human rights law.  Thats not the case

At first, I thought you might have been from an odd country. Now, I am thinking... are you an Alien?


Yes, you don't have the right to steal stuff but thieves exist. Your premise is that the thief must, once stolen something, take it to the authorities and provide all evidence of what he has done. I presume, you also want him to put himself in the jail, lock the door, and throw away the key.

I again point to the fact that I can accuse you (falsely), and you must provide me with what ever is needed to prove that you did it. You obviously don't mind authorities rummaging through not only you physical belongings but your memories too.

But if you live in such a utopian world where thieves turn themselves in and provide all evidence against themselves, don't let anybody know where it is cause their will be a lot of criminals headed there.

[Explodicle]

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun.  

[Emphasis mine] Would you please elaborate? To me it almost looks like you're saying the exact purpose of courts is to force people to do pretty much anything regardless of human rights.

You don't have a human right to steal stuff. If you have stolen stuff, you don't have a human right to hide the evidence.  Your whole outlook seems to be based on the idea that one can steal stuff and then hide behind a façade of human rights law.  Thats not the case.

Your choice to change "human rights" to "human rights law", and then call it a facade, is quite telling.  

Do you not believe in any right against self-incrimination at all, or do you believe it just does not apply to the location of damning evidence? I'm arguing for a negative right (to remain silent), not for a positive right (to steal or hide evidence).

[grue]

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

nah they'll just tourcher you. 

[ZodiacDragon84]

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

nah they'll just tourcher you. 

anyone will say anything to make torture stop, so that would be a fairly unreliable and archaic way to get information. Now Sodium Pentothal, that would probably do the trick, while violating my human rights at the same time. Its the American Way!

[JusticeForYou]

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

nah they'll just tourcher you. 

anyone will say anything to make torture stop, so that would be a fairly unreliable and archaic way to get information. Now Sodium Pentothal, that would probably do the trick, while violating my human rights at the same time. Its the American Way!

Well, since I really don't have massive secrets on my laptop. I'll hold out for a BJ from a cute Red Headed Woman. Blondes also accepted.

15 minute minimum.

Russia discovered that in the Cold War, screw torture and money, just give them sex.

[ZodiacDragon84]

Perhaps one should have read the noob tutorials on the bitcointalk.org forums about securing your wallet, as the government will tell you you're SOL on getting your coins back. They want my passwords, they can pry them from my cold dead brain matter.

nah they'll just tourcher you. 

anyone will say anything to make torture stop, so that would be a fairly unreliable and archaic way to get information. Now Sodium Pentothal, that would probably do the trick, while violating my human rights at the same time. Its the American Way!

Well, since I really don't have massive secrets on my laptop. I'll hold out for a BJ from a cute Red Headed Woman. Blondes also accepted.

15 minute minimum.

Russia discovered that in the Cold War, screw torture and money, just give them sex.

I too enjoy red heads. but remember, you give em your key, and there are redheads in prison, and they aint ladies

[westkybitcoins]

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?

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.

The last time that happened was the last time someone made such a ridiculous statement in court. 

Seriously, you think a judge is going to sit there and allow a common thief to keep his ill gotten gains just by pretending that he doesn't remember where he hid the money? 

I'm a little concerned that the point of that exchange flew right past you.

If the guy really did hide lots of keys (to what, who knows) it's entirely plausible: What if the guy REALLY DIDN'T REMEMBER?

Let's even say it's visibly probable that he's guilty. But the prosecutor wants proof that the $1000 was stashed away just to convince the jury.

Theft of $1000 is... what, under a year in jail? Maybe 6 months?

But the guy gets sent to jail indefinitely because he can't remember something? That's the BS part. Whether or not the judge believes him is irrelevant. The proper principle is innocent until proven guilty, so that we let the guilty go before we trample upon the innocent. And if that judge can't prove the guy really DOES remember, then the very real possibility exists that an innocent person is about to get screwed.

I recently came across a stash of... precious assets that I had squirreled away, and forgotten about. Had someone asked me about it, I wouldn't even remember, never mind recall the location. It sure would have sucked had that location been deemed an important enough part of some case that a judge would have tried to order me to disclose it.

"Your honor, I seriously, *seriously* don't remember!" (Said with a don't-give-a-flip shrug and grin because, really, I don't, and nothing can change that fact, but I can already see where this is going, so screw it.)

"That stash was worth $XXX! That smirk on your face tells me you're just lying. Well, maybe you'll just sit and decide how long you want to stay in jail while your memory comes back. Take him away!"

That's not justice. In no sense of the word.

[FreeMoney]

Regarding this whole innocent until proven guilty or the other way around, how about we just leave it up to the individuals involved, but imprisoning an innocent person is punishable by the same imprisonment. It's not right at all for someone to be more reckless with another persons freedom than they would be with their own. Not just judges either, working for a facility that uses rules that lets them jail innocents is recklessly negligent. Maybe you can't check out the history of everyone who is locked down, but can certainly look and see if the procedure can lead to false imprisonment and determine if it's likely enough that you'll take the risk yourself.

[Hawker]

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun.  

[Emphasis mine] Would you please elaborate? To me it almost looks like you're saying the exact purpose of courts is to force people to do pretty much anything regardless of human rights.

You don't have a human right to steal stuff. If you have stolen stuff, you don't have a human right to hide the evidence.  Your whole outlook seems to be based on the idea that one can steal stuff and then hide behind a façade of human rights law.  Thats not the case.

Your choice to change "human rights" to "human rights law", and then call it a facade, is quite telling.  

Do you not believe in any right against self-incrimination at all, or do you believe it just does not apply to the location of damning evidence? I'm arguing for a negative right (to remain silent), not for a positive right (to steal or hide evidence).

Maybe you need to take a step back and think things through.  You have a right to not to incriminate yourself so if a policeman says "Did you steal this car?" you can refuse to answer.  But you don't have a right to hide stuff you have stolen.  If a policeman says "I want to look in your garage for the stolen car." and he has a court order, you have to allow him into the garage.

Does that make it clear enough?

Clear enough?

[Explodicle]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

[Hawker]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

[westkybitcoins]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

[Explodicle]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

[Hawker]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

You really believe that if someone steals something from you, its wrong to insist he returns it ?  You have strange ideas of what justice is.

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

Generally, judges are very slow to lock people up before a conviction takes place.  The example that comes to mind is Judith Miller who took 5 months in jail before she talked.  But if the judge is convinced you are its "won't" not "can't" he does have the power to lock you up.

[westkybitcoins]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

You really believe that if someone steals something from you, its wrong to insist he returns it ?  You have strange ideas of what justice is.

You're still presuming guilt.

If someone legitimately can't remember some fact that is required to prove their guilt, then you don't KNOW they're guilty. You shouldn't be compelling him to be a witness against himself. That's not justice.

If someone legitimately can't remember some fact that isn't required to prove their guilt, then why not prove their guilt without it? Compelling him to be a witness against himself when it's not necessary isn't justice.

If you do prove it, and they still legitimately can't remember, say, the code to a vault full of money, then what are you going to do? Keep them in jail for the rest of their life? That's not justice either.

You're advocating for a methodology that is guaranteed to hurt innocent people, AND to overpunish guilty people.

That's not a just methodology.

[Hawker]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

You really believe that if someone steals something from you, its wrong to insist he returns it ?  You have strange ideas of what justice is.

You're still presuming guilt.

If someone legitimately can't remember some fact that is required to prove their guilt, then you don't KNOW they're guilty. You shouldn't be compelling him to be a witness against himself. That's not justice.

If someone legitimately can't remember some fact that isn't required to prove their guilt, then why not prove their guilt without it? Compelling him to be a witness against himself when it's not necessary isn't justice.

If you do prove it, and they still legitimately can't remember, say, the code to a vault full of money, then what are you going to do? Keep them in jail for the rest of their life? That's not justice either.

You're advocating for a methodology that is guaranteed to hurt innocent people, AND to overpunish guilty people.

That's not a just methodology.

We are actually in agreement.  No-one should be forced to testify against themselves.  And no-one should be allowed to obstruct justice by hiding evidence.  What I can see from your replies is that you didn't read the article.


"The judge in the Colorado case said there was plenty of evidence — a jailhouse recording of the defendant — that the laptop might contain information the authorities were seeking.

The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”"

Ramona Fricosu has the trading history on her laptop so she has to give access to it.  She has been offered immunity for parts of the contents of the laptop but they do need to get the details of her mortgage applications. 

[westkybitcoins]

You're still presuming guilt.

If someone legitimately can't remember some fact that is required to prove their guilt, then you don't KNOW they're guilty. You shouldn't be compelling him to be a witness against himself. That's not justice.

If someone legitimately can't remember some fact that isn't required to prove their guilt, then why not prove their guilt without it? Compelling him to be a witness against himself when it's not necessary isn't justice.

If you do prove it, and they still legitimately can't remember, say, the code to a vault full of money, then what are you going to do? Keep them in jail for the rest of their life? That's not justice either.

You're advocating for a methodology that is guaranteed to hurt innocent people, AND to overpunish guilty people.

That's not a just methodology.

We are actually in agreement.  No-one should be forced to testify against themselves.  And no-one should be allowed to obstruct justice by hiding evidence.  What I can see from your replies is that you didn't read the article.


"The judge in the Colorado case said there was plenty of evidence — a jailhouse recording of the defendant — that the laptop might contain information the authorities were seeking.

The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”"

Ramona Fricosu has the trading history on her laptop so she has to give access to it.  She has been offered immunity for parts of the contents of the laptop but they do need to get the details of her mortgage applications. 

Hmm. It would appear that the article I read (from a Facebook post) differs from this one in a few points.

That said, I still don't think we're in as much agreement as we'd prefer. I'm actually challenging the core principle, that the judge has the right to order information be given in the first place, under any circumstance, regardless of how common it is the modern-day USA. The fact that the data can't be used against her (at least until someone, maybe this judge, overrides that later) doesn't address that.

Let me try to drive it home, boil it down to one big question:

If she claims she doesn't remember the password, or she says for some reason she can't decrypt the drive, or if she says the password is on a Post-It note which is missing from her desk and she says "Well, then I don't know who took it," then how long should she remain in jail?

"Until she remembers," of course, would mean "for the rest of her life, if necessary."

Is that what you feel is justified?

[Hawker]

...snip...

Hmm. It would appear that the article I read (from a Facebook post) differs from this one in a few points.

That said, I still don't think we're in as much agreement as we'd prefer. I'm actually challenging the core principle, that the judge has the right to order information be given in the first place, under any circumstance, regardless of how common it is the modern-day USA. The fact that the data can't be used against her (at least until someone, maybe this judge, overrides that later) doesn't address that.

Let me try to drive it home, boil it down to one big question:

If she claims she doesn't remember the password, or she says for some reason she can't decrypt the drive, or if she says the password is on a Post-It note which is missing from her desk and she says "Well, then I don't know who took it," then how long should she remain in jail?

"Until she remembers," of course, would mean "for the rest of her life, if necessary."

Is that what you feel is justified?

To be locked up for any crime, the prosecution needs to be prove beyond all reasonable doubt that the defendant is guilty.  If they do that and if the amount stolen is significant, then lock her up as long as it takes.  There is no way someone who has gained several million dollars by way for mortgage fraud should be able to do a few month custody for dishonestly filling in forms and keep the money for when they are released.

[westkybitcoins]

...snip...

Hmm. It would appear that the article I read (from a Facebook post) differs from this one in a few points.

That said, I still don't think we're in as much agreement as we'd prefer. I'm actually challenging the core principle, that the judge has the right to order information be given in the first place, under any circumstance, regardless of how common it is the modern-day USA. The fact that the data can't be used against her (at least until someone, maybe this judge, overrides that later) doesn't address that.

Let me try to drive it home, boil it down to one big question:

If she claims she doesn't remember the password, or she says for some reason she can't decrypt the drive, or if she says the password is on a Post-It note which is missing from her desk and she says "Well, then I don't know who took it," then how long should she remain in jail?

"Until she remembers," of course, would mean "for the rest of her life, if necessary."

Is that what you feel is justified?

To be locked up for any crime, the prosecution needs to be prove beyond all reasonable doubt that the defendant is guilty.  If they do that and if the amount stolen is significant, then lock her up as long as it takes.  There is no way someone who has gained several million dollars by way for mortgage fraud should be able to do a few month custody for dishonestly filling in forms and keep the money for when they are released.

Well, I agree with that last sentence. One would hope she would be watched, and prosecutors would swoop in as soon as signs of her ill-gotten gains appear.

But again, "as long as it takes" potentially means forever, if she for whatever reason no longer can provide that unencrypted data. That potentially means her punishment for forgetting, or for losing her password, or just for being stubborn about it, would be far more severe than the punishment for the actual crime itself.

That sets in motion a system whereby anyone can be over-punished in such a manner. Actually, where such a thing is guaranteed to happen to some people. That's an inherently unjust system, and one I can never support (which is consistent, because I *know* I'll be furiously protesting were I caught in such a situation where info was demanded that I couldn't provide even if I wanted to.)

As far as this case in particular, I have no doubt that after punishment any attempt to use the funds would be obvious, unless she slowly spent it on trivial things, which wouldn't even be worth cracking down on.

Actually, I'm a big proponent of restitution as punishment anyway. If instead of jail time she were charged to pay back what she owed, plus interest, plus damages, plus court costs and finally a fee just because she's a thief; and were that obligation held over her regardless of where she worked or what she did, she'd have every incentive to give up any ill-gotten gains. And if she couldn't? Well, tough, you were found guilty even without the files, and you need to pay it back, so get hopping....

[Explodicle]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves.  

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

Generally, judges are very slow to lock people up before a conviction takes place.  The example that comes to mind is Judith Miller who took 5 months in jail before she talked.  But if the judge is convinced you are its "won't" not "can't" he does have the power to lock you up.

That didn't answer my question. How did the judge become convinced that I remember something? I should hope that before punishing anyone for any reason they have proof, and I can't think of a legal way to prove someone remembers something.

[JusticeForYou]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves.  

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

Generally, judges are very slow to lock people up before a conviction takes place.  The example that comes to mind is Judith Miller who took 5 months in jail before she talked.  But if the judge is convinced you are its "won't" not "can't" he does have the power to lock you up.

That didn't answer my question. How did the judge become convinced that I remember something? I should hope that before punishing anyone for any reason they have proof, and I can't think of a legal way to prove someone remembers something.

The only example that I could think of is: If the defendant says: Yes, I know but I am not going to tell you.  Or a reporter that refuses to reveal a source. Which, by the way, many reports would love to go to jail because it is a badge of honor that will get them many more sources.

[Hawker]

...snip...

That didn't answer my question. How did the judge become convinced that I remember something? I should hope that before punishing anyone for any reason they have proof, and I can't think of a legal way to prove someone remembers something.

Maybe you can't because you are in debating mode. 

In the real world, if you are in court and the judge has ordered you to disclose something, generally you are going to jail if you don't comply.  That's how the law works - without that sanction, there would be no law enforcement and you'd need to go after thieves yourself.

[JusticeForYou]

In the real world, if you are in court and the judge has ordered you to disclose something, generally you are going to jail if you don't comply.

Partly true.

  The Judge orders you to disclose something you don't know. That precedent would be dangerous as it would circumvent a trial. If you don't know something, you can't disclose it.

For example: You have your Private Key to your wallet.dat file. You accidentally destroyed that file. You are being prosecuted for 'laundering' and the judge orders you to disclose your private key. It was in your possession, you had control of it, you however lost it.

The Judge orders you to reveal your private key. He doesn't believe you don't know it. So off to jail for life, it is for you.

[Hawker]

In the real world, if you are in court and the judge has ordered you to disclose something, generally you are going to jail if you don't comply.

Partly true.

  The Judge orders you to disclose something you don't know. That precedent would be dangerous as it would circumvent a trial. If you don't know something, you can't disclose it.

For example: You have your Private Key to your wallet.dat file. You accidentally destroyed that file. You are being prosecuted for 'laundering' and the judge orders you to disclose your private key. It was in your possession, you had control of it, you however lost it.

The Judge orders you to reveal your private key. He doesn't believe you don't know it. So off to jail for life, it is for you.

I suggest you tell the judge you lost it.  If he is unreasonable, you have an immediate right to have his decision reviewed and he can't lock you up during the review.

What puzzles me is that you think computers are somehow special.  Saying you don't remember your password is no different to saying you don't remember where you buried a bag of evidence.  Its a dumb strategy.  The correct approach is it say nothing at all.  If Ramona Fricosu has left emails on her laptop proving that the mortgage applications were based on fake references, why should she be able to keep the money just because the details are stored electronically as opposed to on a notebook she buried somewhere?

[JusticeForYou]

What puzzles me is that you think computers are somehow special.  Saying you don't remember your password is no different to saying you don't remember where you buried a bag of evidence.  Its a dumb strategy.

What puzzle's me, is that you think an unfound bag of evidence, IS evidence when it is nothing but speculation that there is evidence.

[Explodicle]

I can't think of a legal way to prove someone remembers something.

Maybe you can't because you are in debating mode. 

I can only hope that my judge has better mind-reading powers than you. 

[Hawker]

What puzzles me is that you think computers are somehow special.  Saying you don't remember your password is no different to saying you don't remember where you buried a bag of evidence.  Its a dumb strategy.

What puzzle's me, is that you think an unfound bag of evidence, IS evidence when it is nothing but speculation that there is evidence.

Have you read the article?  Really?  Because I don't see how you can get from a woman who openly admits she can reveal the contents of the hard drive and that the contents are evidence.  There is no speculation here.

[JusticeForYou]

Thread resolved:

http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-amendment-right-against-self-incrimination-not-to-decrypt-encyrpted-computer/

[compro01]

Thread resolved:

http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-amendment-right-against-self-incrimination-not-to-decrypt-encyrpted-computer/

Let's see, that's a "yes" from the 10th circuit and a "no" from the 11th.  Supreme court time.

[Hawker]

Thread resolved:

http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-amendment-right-against-self-incrimination-not-to-decrypt-encyrpted-computer/

Let's see, that's a "yes" from the 10th circuit and a "no" from the 11th.  Supreme court time.

The problem is the perps keep pleading guilty before it can ever get that far.

[TECSHARE]

There is an extremely high conviction rate in US Federal courts. Over 95% of ALL defendants taken to US Federal courts are convicted, leading almost everyone to plea-bargain to a lesser charge and plead guilty.

[Hawker]

There is an extremely high conviction rate in US Federal courts. Over 95% of ALL defendants taken to US Federal courts are convicted, leading almost everyone to plea-bargain to a lesser charge and plead guilty.

That's amazing. Why is it so high?

[TECSHARE]

The corrections system is the largest employer in the country after Wallmart  (I mean the industry as a whole not an individual company). That is not even counting the law enforcement side, or all of the asset seizures. Putting people in prison is big money, and we have over 2 million people in prison right now.

Decent related article explaining some of the profit motives: http://www.corpwatch.org/article.php?id=852

[JusticeForYou]

The corrections system is the largest employer in the country after Wallmart  (I mean the industry as a whole not an individual company). That is not even counting the law enforcement side, or all of the asset seizures. Putting people in prison is big money, and we have over 2 million people in prison right now.

Decent related article explaining some of the profit motives: http://www.corpwatch.org/article.php?id=852

Funny how that is being thought of recently.

There have been people being released from Prison because the 'State' doesn't want to take care of their medical needs. Last case I remember is a woman in Mississippi that needed a Kidney Transplant.

When enough people become poor, hungry, and/or need medical care, prison will be the support system.

[sunnankar]

There is an extremely high conviction rate in US Federal courts. Over 95% of ALL defendants taken to US Federal courts are convicted, leading almost everyone to plea-bargain to a lesser charge and plead guilty.

That's amazing. Why is it so high?

Based on conversations from my buddies from law school who have gone onto become US attorneys, public defenders and district attorneys it seems that it has to do with the allocation of resources (only the best cases are selected for prosecution by US attorneys), politics (many district attorneys, etc. are publicly elected) and career considerations (taking only cases with the higher conviction rates leading to promotions versus getting experience to move into private practice).

Perhaps others have some additional insights.

BTW, Hawker, you seem to have no understanding of the actual rules which are applicable with regards to self-incrimination, spoliation of evidence and the contempt power, reason worse than a rock and have no understanding of the law. I am not sure why people keep wrestling with you; you'd think they would figure out the pig likes the mud and they only get dirty.

[Hawker]

There is an extremely high conviction rate in US Federal courts. Over 95% of ALL defendants taken to US Federal courts are convicted, leading almost everyone to plea-bargain to a lesser charge and plead guilty.

That's amazing. Why is it so high?

Based on conversations from my buddies from law school who have gone onto become US attorneys, public defenders and district attorneys it seems that it has to do with the allocation of resources (only the best cases are selected for prosecution by US attorneys), politics (many district attorneys, etc. are publicly elected) and career considerations (taking only cases with the higher conviction rates leading to promotions versus getting experience to move into private practice).

Perhaps others have some additional insights.

BTW, Hawker, you seem to have no understanding of the actual rules which are applicable with regards to self-incrimination, spoliation of evidence and the contempt power, reason worse than a rock and have no understanding of the law. I am not sure why people keep wrestling with you; you'd think they would figure out the pig likes the mud and they only get dirty.

Oddly enough, the judge in this case seems to have the same flaws you see in me.  Since the crook pleaded guilty, I guess we will never know who was right.