One way or another, it looks like we'll find out if the 5th Amendment still holds any water in this country. My guess is probably not, but it all depends on how much money this guy has, I imagine.
When you are laying charges, evidence comes first, then the charge. To collect the evidence you conduct interviews and subpoena documents. This is part of the evidence gathering phase that establishes whether the government has a case, preceding laying charges.
How so? Had they found printed cyphertext in his house, would he be in jail? Or, more cogently, one sheaf of random numbers and one of cyphertext?
The point is, the whole "lock" analogy is wrong. Encryption is not an unbreakable lock, nor is it a game-changer. It's been there for hundreds of years at least, as long as there have been cyphers.
The Electronic Frontier Foundation has weighed in on the suspect's plight, telling the circuit court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
It's a cute little play. He's not charged with anything, so he can't claim his rights under the Fifth. Of course when he does reveal, assuming there is, he can be charged, and cannot retroactively apply the Fifth.
By providing the password, he also acknowledges the hard drives/computers are his. There could be nothing on them and they could charge him with theft of the drives, with proof being that he provided the password to them.
However audacious it is to deny (or not admit) ownership of something so obviously in his possession, it is his right.
The 5th Amendment always applies. It is a right I have always, no matter what that cannot be legally removed. I do not have to be charged with anything to exercise it. This is a common misconception. If testimony is compelled, as in this case, I have a right not to self-incriminate. The government does not have a right to deny my other rights, like they are doing here, by holding me indefinitely without charges (cruel and unusual punishment, denial of due process).
But all of the above is purely theoretical these days. As you can see, our government can do whatever it wants with little to no consequences. The Constitution isn't worth the paper it was written on and talking about 'justice' in America is like some sort of sick joke (this has always been true in America's history except as it applies to small classes of highly privileged, rich, white people).
The way that the Supreme Court has decided cases about safe combinations in the past this court pretty much has to find that the 5th Amendment covers encryption keys.
But to play devils advocate, I don't think it would destroy the 5th Amendment to treat an encryption key the same as a physical key.
A physical key is not equivalent to an encryption key. It is equivalent to an encryption key that has been printed out on a piece of paper to be kept in your pocket.
That's not a slippery slope. That's a cliff. If all it takes is a forensic experts "guess" that there might child porn on there somewhere to access everything you've got without even filing charges then kiddie-porn is just the quick way to say that the 5th has been repealed.
If ever there was a indictment of the quality of forensic evidence, this would be it. The expert "guessed" the contents of the encrypted drive? With what, magic? Did the arrangement of the encrypted content hint at the presence of child pornography?
Actually surprised that arstechnica didn't call this out - maybe they knew their audience was sufficiently technical to get the implication.
There are plenty of reasons one can guess the contents of the hard drive - but it's nothing more, just a guess. Could be useful for guiding a search for actual evidence.
The real issue here is that the legal system is then treating this guess itself as a sort of actual evidence for jailing the suspect.
In my world, there is no such thing as an "encrypted drive" in that no drive is ever not encrypted. Other than booting, there is no reason for data to be stored unencrypted. Whether it's full disk, home-directory, or volume-based encryption, nothing should be in plaintext.
The only non-encrypted drive I need are thumbdrives for playing thing on my media player (WD). But I'd love to close that gap should anyone market a reasonable media player that can handle encrypted drives.
As rare as actual child porn is, the government loves these cases because the defendant is considered guilty before even being arrested, certainly before he gets in front of a judge/jury and there's so much taboo around the issue that most people are unwilling to come to the aid of the defendant. Come to think of it, I could say the same thing about terrorism cases (which are even rarer). And yes, the message they're constantly sending is that pretty much the whole Bill of Rights has been repealed, not just the 5th.
yea, but he is right that logic and reason are quickly thrown out the window by many people when the suggestion of either terrorism or child porn are brought up. I've experienced that in person while serving on a jury.
It seems difficult to get any recent authoritative source on child porn incidence rates. What is the origin of your information? Has there been any academic discussion on the incidence rates of child porn?
Sorry no figures just I know someone that works i a court here in the UK and said there are regularly people in on child abuse imagery/video charges, they are usually some boring guy that no one cares about so they don't make the press.
Sorry no figures just I know someone that works i a court here in the UK and said there are regularly people in on child abuse imagery/video charges, they are usually some boring guy that no one cares about so they don't make the press.
Yeah, this is very little difference here between the seizure laws enforcement uses to steal money from citizens. They can make any claim they want and you are forced to prove otherwise while they have no requirement to prove guilt
The guess is slightly more compelling when considered together with the testimony of the sister that she viewed images of abuse on the computer.
Like, the line of questioning could be, did you find any images on the computer, did you find any evidence of techniques used to obscure information on the computer, could the images that so and so observed be stored using those techniques. It isn't confirmation that the images are there, but it is more than guessing out of thin air that there might be images there.
The government doesn't have a case with that evidence alone, that's why they are trying to compel the defendant to decrypt the hard drive. Here is how that's an end run around the 5th amendment:
> State: you are under arrest on suspicious of possession of child pornography. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he has it in that computer
> State: now reveal the password
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal the password
Here is how that could play differently in the future:
> State: you are under arrest on suspicious of murder. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he did to the victim
> State: now reveal the whereabouts of the body
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal it
If the All Writs Act allows the government to do the first it also allow the government to do the second.
That's not really the issue that concerns me. If the state can prove beyond a reasonable doubt that he is capable of complying with the warrant (but is choosing not to) then contempt and jail is wholly appropriate. Similarly, if the state could prove he knew where the body was beyond a reasonable doubt then that's enough to lock him up, sure, absolutely, 100%. Even if he didn't do it, concealing facts about it when subpoenad or served with a warrant etc is certainly illegal.
But the difference here is, can the state prove the drives are encrypted? Probably. I'd assume that's the case (forensic examination could reveal file names, logs, etc that provide evidence of that volume having been decrypted, the vast majority of encryption systems are readily identifiable)
Can the state prove he is capable and unwilling, rather than willing but incapable, of decrypting the drives? I don't think that could ever happen. What if he genuinely forgot the password? What if he never knew it (was storing them for someone else, a common lie/excuse to give to police but something that could be true, any number of other reasons)?
Does every person have to be able to provide access to all encrypted data on their devices if served with a warrant, with the consequences of being unable to do so indefinite imprisonment? Is forgetting or losing a password in unlucky combination with an false accusation of wrongdoing grounds for a life sentence?
I'm not in the legal profession, but I don't see those two as equivalent at all. Are you sure those are legally equivalent?
The first case allows police to make a search they couldn't make before.
The second is... I don't even know what. I would expect if you wanted them to be equivalent, you'd make the second more like: "We know you hid the body in your yard. Unlock your gate so we can enter and find it."
How is an encryption key different from any other piece of information that could be used to intimate you? It's not a physical object that can be searched.
The key difference between the two is what is revealed by the disclosure that they are trying to compel.
In the case of the hard drives, providing the decryption key establishes only that the drives belong to him or that he at least has access to the information they contain.
In the second case showing the police where a body is located is in itself strong evidence that he was involved in the crime.
So all I have to do is testify I saw images of abuse on my sister's computer and she can be jailed indefinitely? That's not just. That's a repressive police state.
The burden of proof is on the accuser. The accused bears no burden of proof. This principle goes back almost 2,000 years, across multiple cultures, includes the Universal Declaration of Human Rights, predates and includes the American culture as well. [1]
Held without charges and without evidence on the suspicion that the drives contain something relevant.
So if his protection against self-incrimination is upheld by courts, can he turn around and sue for this blatant violation of his constitutional rights?
> The other was a forensic examiner who testified that it was his "best guess" that child pornography was on the drives
I'm curious how on Earth one arrives at that "guess" for an encrypted drive other than reasoning "why else would he not decrypt them?" In which case his expertise as a forensic examiner is irrelevant.
> The government’s second witness was Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office. He testified only that it was his “best guess” child pornography would be found on the hard drives. (Ex. J at 346). According to Tankelewicz’s understanding of the Freenet online network (in which he admits having no training), there were signs on an Apple Mac Pro computer seized with the hard drives of a user accessing or trying to access message boards with names suggestive of child pornography. (Ex. J at 306, 311-312, 339-340). In rather ambiguous testimony, Tankelewicz did not appear to say this meant any image traded over these boards was on the hard drives. (See Ex. J at 303-317, 336-340, 345-350). Instead, he identified a single image he believed there to be a “possibility” was on the drives. (Ex. J at 308-309)
> Here, the Affidavit of Special Agent David Bottalico, supporting the application for a
Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2)
prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic
devices; and (3) there are images on the electronic devices that constitute child pornography.
(Affidavit iii! 13-31.) Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls
to assist in the decrypting of those devices does not violate his privilege against selfincrimination.
In other words (in my understanding), under the foregone conclusion doctrine, the government needs to show that they know the document exists and what it contains. In this case I believe that would mean that they have to provide evidence that they know there is child pornography on the devices. And the testimony above seems to be the only thing they are putting forward as evidence to invoke the doctrine.
One of those cases where you kind of want the government to look inside the hard drive in this case (since the accused is only objecting under Fifth Amendment grounds, meaning there probably is legitimate evidence against him on those hard drives), but I can't support it because of the precedent it sets.
If the forensic examiner is allowed to "guess" what's on the drive, why can't the owner of the drive "forget" the passphrase?
I have an encrypted filesystem from years ago that I've forgotten the password to, it has some vacation pictures on it that I'd like to retrieve, and every once in a while I try to guess the passphrase but so far I've been unable to.
My guess would be in data found on unencrypted drives that reference files on the encrypted drive. For example, you might have filenames that hint at child pornography in metadata (itunes, WMP, etc.) or CLI history.
Sure, the file might be unfortunately named, but, in this case maybe it was enough evidence to hold him?
I'm no lawyer, but I think that's what they usually call "evidence". If they have evidence of what's on the drive, then he can be compelled to open it under current law.
There was a case a while back of a guy crossing a border. The LEO who inspected the laptop claims he saw CP, and somehow it was turned off before it could be preserved. In that case, they ruled that it wasn't protected by the 5th because it wasn't a search - they "knew" the evidence was there, they just couldn't access it.
Child porn is pretty messed up, but also one of those scary things because it's so easy to move data into any computer without consent. Then it's an easy claim to make against anyone whether or not it's true.
Drug possession is not strict liability, child porn is. That means you don't need to have intention; if I email you a file and you open it, then the feds break down your door, you have committed a crime. Or rather, as long as it's on your computer (say a website downloaded it in the background), you're liable. Even if you have 100% solid proof that it wasn't your fault, you're guilty.
With drugs, you can at least sometimes get off with proof that you didn't have intent.
Something I've been curious about for a while: does Mega do this sort of scan on the client-side before everything gets encrypted? I can't imagine law enforcement is very happy with them otherwise.
> Or rather, as long as it's on your computer (say a website downloaded it in the background), you're liable. Even if you have 100% solid proof that it wasn't your fault, you're guilty.
Do you have a cite for the law? What you say isn't true for the England; I doubt it's true for the US.
> Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—
> (a)that he had a legitimate reason for having the photograph [F5or pseudo-photograph] in his possession; or
> (b)that he had not himself seen the photograph [F5or pseudo-photograph] and did not know, nor had any cause to suspect, it to be indecent; or
> (c)that the photograph [F5or pseudo-photograph] was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
> (c)that the photograph [F5or pseudo-photograph] was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
I can't find the citation, but there was a case brought up in my uni it ethics/law module that noted that visiting a website that then downloaded something like that in the background was sufficient to disqualify that condition from applying, as there was a prior request to visit the webpage that delivered the image. even if the website wasn't visited with the intention of the image.
and the person involved was jailed. they may have gotten out on appeal mind, but again, i can't remember more details than that to verify
It's not. The distinction would be between planting CP and planting a murder weapon in someone's car. The weapon isn't the crime. It's evidence of a person's guilt. The CP is the crime. As would be the baggie of crack cocaine.
I the defense lawyer is unable to demolish this "best guess" evidence in court I think quality of law schools in the country is sht.
If the judge cant see what is wrong with this "best guess" evidence, the judiciary has lost its marbles.
If the members of jury don't find it wrong, as society we have probably lost compassion and empathy and sense.
As marijuana legalization is probably foregone conclusion I think government is going to start with "war on sex" that will have same effects on society. New Hampshire recently passed laws that would make sex traffickers out of totally innocent people.
Perhaps the defense attorney is an overworked public defender which no understanding of technology who had no ability to challenge the stupidity of the "expert guessing".
If they can jail someone for not decrypting data, what stops law enforcement from piping /dev/random into kiddie_porn.tc and getting some 'expert' to 'guess' that it contains illegal images as an excuse to jail some inconvenient individual forever?
>Procedure and integrity. Which are in play in almost every aspect of law enforcement anyway.
Procedure and integrity are in play in almost every aspect in life. The problem is that when you give absolute power, the ones who aim to use it the most are the minority who seek to abuse the power.
Although I agree that we're heading this direction at a scary rate, it's an exaggeration to claim that the U.S. is already a place where this is routinely possible.
Well, both evidence planting as well as using parallel construction to fabricate an intricate web of lies to present to courts as the origin of some piece of evidence are already normal.
Just combine them, and simply lie about false evidence instead of correct one. Since it is already obvious that the law is not considered binding if inconvenient, there really is no obstacle to overcome anymore.
Most people did not believe, pre-Snowden, that intercepting everyone's communications was something that was routinely done (though they might have believed it was possible).
If you're convicted for some crime using, say, biometric and network data you can view the evidence and dispute it on several levels. If someone wanted to plant fake data, it would require corruption along the whole chain of custody including many many people and several companies.
But something like this could be created with three seconds in front of a terminal by a single individual. Here there's no evidence to dispute.
This means that anyone who uses freenet can have a warrant against them. I would attack the warrant itself. From what I remember about freenet (it's been many years since I looked into it), plausible deniability is given because each node is requesting keys that another node requested. For instance, if node A wants file X, then A will request X from B, C, and D, who will in turn request it from more nodes, and no one knows who the original requester was. So every person on freenet is holding a cache of data that other nodes have requested, and has no idea what was requested, and are themselves requesting files on behalf of other nodes which they have no idea about.
In summary, if you are on freenet, you are not only requesting your own files, but files on behalf of others, some of which could potentially be illegal material.
If being on freenet and requesting a key (even for someone else) is enough to get a warrant, all people using freenet from a traceable IP should immediately get off freenet.
I don't know anyone who uses it, I thought tor superseded it, but this sets a very dangerous precedent. The defense should be reaching out to a computer scientist who can explain the fundamentals to the court.
Or just trying truecrypt once and typing "asdfdlcwgnvldtrobiaedtpaeoaeuodtrn1234567hgr" as the passphrase, leaving the container in your tmp folder. I really hope (and guess) there is more evidence here about the probable contents.
Can a rational argument be made, that addresses the emotions involved, for repealing laws that criminalize the existence or transfer of information?
The best argument I can come up with is that digital security simply isn't understood well enough for us to have solid evidence trails.
It's far too simple for an attacker (not necessarily law enforcement, a frustrated savvy neighbour is enough) to target someone and the consequences are so dire.
The War on Drugs criminalized the possession and transfer of physical objects, in the process providing convenient mechanisms by which to persecute undesirable individuals.
Laws against the transfer of information seem to provide the same loophole, but in a digital space. To me, that's far more worrisome.
Not likely, but he'd be there for a very long time.
Generally speaking, when being held in jail for contempt charges, you can be held indefinitely, so long as you remain in disobedience to a court order. That last part is important, since the idea is you "hold the keys" to your own release.
However, if it's physically impossible for you to comply with said court order, you no longer hold those "keys", and can no longer be held in contempt.
That said... they're not going to believe you just "forgot" your password. The courts don't look favorably at folks who try to game the system like that, and you'd have a hard time proving otherwise.
See Chadwick v. Janecka, where a man was held in contempt for 14 years (!) for refusing to disclose where he allegedly hid funds from an overseas bank account during a divorce proceeding. They eventually let him go after they decided that being held in jail had lost its coercive effect... but again, that took 14 years.
So the burden of proof is on the defendant here? Shouldn't the state have to prove that he does indeed know the passcode and refuses to reveal it, rather than have the defendant prove that he forgot it?
The problem is that it is actually possible that someone no longer knows the password to some piece of encrypted data. If the government can just hold you indefinitely because they don't believe you then that is a huge issue.
Yeah - I lost the password to my DogeCoin wallet within two weeks. I tried all the regular combinations of things. I tried all the unusual combinations of things. I tried old passwords. Gone. Until they have a way to read archived memories...
If they can show that you've been using the password regularly, recently, for a while, then not believing a claim to have forgotten seems, if not necessarily correct, at least not absurd.
If they can't show that, and the file might not have been accessed since it was created years ago, then I think it's unquestionably wrong to ignore the fallibility of human memory.
Good luck showing that in many cases. Especially if it is an encrypted external drive. I think in most cases they aren't going to be able to show "beyond reasonable doubt" that a person definitely still knows the password.
I don't disagree, but I don't think that is a sufficient reason to bear the kind of risk of indefinitely jailing innocents entailed by not requiring such a showing.
Necroing this, but the proper thing to do is just don't indefinitely jail people without proof of something rather than "requiring" such a showing(you can't really require it since, barring torture/some kind of mind probe, the person can always sit in jail indefinitely and refuse).
What if the suspect has some sort of accident that involves partial loss of memory? How do they decide if he refuses to cooperate or if can't cooperate?
Oh! I know. Waterboarding him for, say, one month should be enough to make sure he actually can't remember.
Those Americans who believe that persons cannot be held without trial are completely naive and need to spend time watching what goes on at an actual courthouse or police station. There are countless persons held without any allegation let alone formal charges. Material witnesses top the list. Jail (as opposed to prison) isn't about punishment. It is about the state holding people it deems useful to hold.
As a lawyer, my advice is always to stay as far away from police as possible. Do not volunteer anything. Do not participate. Online, always work under the assumption that you are the target of an investigation. Encrypt everything. Use VPNs, preferably overseas VPNs by default and Tor where necessary. If asked, never speak to any investigator without first talking to an attorney. Do no rely on some lay interpretation of a constitution. That document is not the friend people make it out to be.
Ridiculous advice. Mobs in this place routinely abuse the system to sink lengthy, well-written posts that they find objectionable. To not discuss this is to let it carry on as normal.
Habes are possible, but they take time. And courts, in my experience, do not want to talk about habes where the prisoner is still "going through the process". The fact that the process can take years doesn't seem to phase them.
This is why "Sovereign Citizens" assemble their own courts to issue bogus writs. Unfortunately, their usual mode of operation is like seeing that a clock is keeping incorrect time, then trying to fix it by prying open the mainspring casing.
If local judges were more interested in upholding the ideals of justice than in keeping their calendars tidy, ordinary people would be more engaged with the system, and more inclined to trust in the results.
The courts have always held the power to compel disclosure of evidence, and to hold those who refuse in contempt.
What this shows is that encryption does not lock justice out and that it's really no different than papers in a safe in a person's house. If prosecutors have a valid reason to access the information they can go to a judge, get a lawful court order and serve it against the person who owns the safe.
Encryption backdoors aren't about justice. They're about the government's ability to conduct fishing expeditions: to surveil massive numbers of citizens without their knowledge and without their right to a day in court.
>it's really no different than papers in a safe in a person's house.
That's a really bad analogy. Those papers actually exist. Without the key the unencrypted data is just a bunch of random nonsense. It does not exist in any real form.
A better analogy is the case where the papers might exist, but are hidden. Can a court compel someone to help the police look for evidence that can be used to incriminate them?
> That's a really bad analogy. Those papers actually exist. Without the key the unencrypted data is just a bunch of random nonsense. It does not exist in any real form.
Um, no, I don't agree with that at all. The point of encryption is that the files are perfectly, 100% recoverable, but only with the key.
Your version is like saying, without the combination of the safe, the papers inside don't exist in any readable form.
There is no fact of the matter, for the recoverability of what someone believes to be encrypted files. The state has one subjective belief—that the files are real, but encrypted. You might have a different belief—e.g. that the files never existed, and your disk contains random data with a disk-encryption header prepended. The concern is that you can be held in contempt for what the government believes to be true—that real data is there, under encryption, which you are not revealing—without that necessarily having any connection to reality.
By analogy: the government can compel me to open a safe, but it shouldn't be able to compel me to open something that—for all examinable intents and purposes—is a block of concrete with the facade of a safe door attached. I could certainly be held in contempt for refusing to open something that has been proved to be a safe; but holding me in contempt for refusing to open a concrete block, because they believe I have some magic power to turn it into a safe, is Kafkaesque.
> What this shows is that encryption does not lock justice out and that it's really no different than papers in a safe in a person's house. If prosecutors have a valid reason to access the information they can go to a judge, get a lawful court order and serve it against the person who owns the safe.
This situation has actually come up before and it was ruled that while a person can be compelled to unlock a box with a physical key, a person cannot be compelled to provide the combination to a safe. [0] goes into a lot of depth on this.
A stronger analogy, falling between the two scenarios, would be: presuming the original key for a lock has been destroyed, but you have memorized the particular key-cutting metrics that would be required to produce a working duplicate, could you be compelled to reveal those metrics so such a key could be created?
Some forms of encryption allow for keys that create evidence that has never existed before. A simple case is an XOR between random data and some illegal file (that only hypothetically exists). That XOR is a key to creating the illegal file which never existed before.
You cannot draw an analogy to any real world item locked up in some way, because in those cases a key could only ever reveal an item that already exists.
>If prosecutors have a valid reason to access the information they can go to a judge, get a lawful court order and serve it against the person who owns the safe.
Yep. The big difference is in the case of a safe they have other options if you refuse - there's not much point in pissing off the judge only to have them call a locksmith and drill your safe.
Depending on exactly how the drive is encrypted, the state may not have a plan B if he refuses to comply.
And if he really truly honestly forgot his password...then what? You go to jail for your entire life because you can't recall a series of cryptic letters and numbers that will be used to convict you? This is no longer America. Innocent until PROVEN guilty is a lie.
so... if a prosecutor has evidence has been gathered where a defendant has a drive with +n files that are encrypted. then the prosecutor has their evidence. However, if the files are when decrypted, then they have +n' -n files, which were not gathered during the initial investigation.
I recognize that the contempt is prior to formal charging, and thus "during" evidence gathering. but I feel like this is equivalent to the government saying: "hey, so we have no proof you did anything, but we have these 107374182400 items that might prove something. So, we want you to produce 107374182400 completely different items that might incriminate you because, well.... we cant". seems weird.
this is obviously not the first case that this has happened in[1][2]. each invoking the 5th, but it still seems strange.
>"The other was a forensic examiner who testified that it was his "best guess" that child pornography was on the drives."
This guy needs to be fired. How in the hell can you tell that it's even images or video let alone children if it's encrypted? I'd love to see a technical explanation of how he came to that conclusion. Can the defendant sue for such a statement given that it's almost entirely fabricated?
I'm not saying this is what happened, (and from what I've read, it's as absurd as you think).
However, an expert could hypothetically have all sorts of clue about the contents of an encrypted drive. Keep in mind that encrypted files still probably have a "last modified date" maintained by the OS, and that many viewer/player apps keep a timestamped list of recent files. If they see that realplayer claims to have played "nude_12_year_old.avi" on a "z:\" drive on a certain date, and that an encryption app opened an encrypted file a little while before that.... You can't know, but an expert could, hypothetically, make an educated guess.
Again, not saying that's what the expert did here. Just saying that this sort of conclusion is theoretically possible in some cases.
My "guess" is the "forensic" "examiner" watched CSI Cyber or NCIS the night before, an episode where the show's forensic "sees" patterns in Matrix-style flow of data.
If a judge within a formally correct legal processing decided that the disk content is to be investigated then that person is obliged to cooperate and if s/he fails to do that then the state has to act forceful.
There's nothing bad about it.
Another question is whether the established legal system allowing for such measures is more harmful than beneficial.
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[ 16.0 ms ] story [ 3441 ms ] threadIn this case he isn't charged with anything, so I'm not sure the fifth applies? I want a lawyer friend lol.
http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicu...
The point is, the whole "lock" analogy is wrong. Encryption is not an unbreakable lock, nor is it a game-changer. It's been there for hundreds of years at least, as long as there have been cyphers.
The Electronic Frontier Foundation has weighed in on the suspect's plight, telling the circuit court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
However audacious it is to deny (or not admit) ownership of something so obviously in his possession, it is his right.
But all of the above is purely theoretical these days. As you can see, our government can do whatever it wants with little to no consequences. The Constitution isn't worth the paper it was written on and talking about 'justice' in America is like some sort of sick joke (this has always been true in America's history except as it applies to small classes of highly privileged, rich, white people).
But to play devils advocate, I don't think it would destroy the 5th Amendment to treat an encryption key the same as a physical key.
That hair is quite thick enough to be splittable.
Actually surprised that arstechnica didn't call this out - maybe they knew their audience was sufficiently technical to get the implication.
The real issue here is that the legal system is then treating this guess itself as a sort of actual evidence for jailing the suspect.
I wouldn't have a desire to reveal that either.
The only non-encrypted drive I need are thumbdrives for playing thing on my media player (WD). But I'd love to close that gap should anyone market a reasonable media player that can handle encrypted drives.
Like, the line of questioning could be, did you find any images on the computer, did you find any evidence of techniques used to obscure information on the computer, could the images that so and so observed be stored using those techniques. It isn't confirmation that the images are there, but it is more than guessing out of thin air that there might be images there.
> State: you are under arrest on suspicious of possession of child pornography. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he has it in that computer
> State: now reveal the password
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal the password
Here is how that could play differently in the future:
> State: you are under arrest on suspicious of murder. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he did to the victim
> State: now reveal the whereabouts of the body
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal it
If the All Writs Act allows the government to do the first it also allow the government to do the second.
But the difference here is, can the state prove the drives are encrypted? Probably. I'd assume that's the case (forensic examination could reveal file names, logs, etc that provide evidence of that volume having been decrypted, the vast majority of encryption systems are readily identifiable)
Can the state prove he is capable and unwilling, rather than willing but incapable, of decrypting the drives? I don't think that could ever happen. What if he genuinely forgot the password? What if he never knew it (was storing them for someone else, a common lie/excuse to give to police but something that could be true, any number of other reasons)?
Does every person have to be able to provide access to all encrypted data on their devices if served with a warrant, with the consequences of being unable to do so indefinite imprisonment? Is forgetting or losing a password in unlucky combination with an false accusation of wrongdoing grounds for a life sentence?
When I do this it is more of a flag to remind my self that I have, in fact, finished scrubbing the device.
The first case allows police to make a search they couldn't make before.
The second is... I don't even know what. I would expect if you wanted them to be equivalent, you'd make the second more like: "We know you hid the body in your yard. Unlock your gate so we can enter and find it."
In the case of the hard drives, providing the decryption key establishes only that the drives belong to him or that he at least has access to the information they contain.
In the second case showing the police where a body is located is in itself strong evidence that he was involved in the crime.
The burden of proof is on the accuser. The accused bears no burden of proof. This principle goes back almost 2,000 years, across multiple cultures, includes the Universal Declaration of Human Rights, predates and includes the American culture as well. [1]
[1] https://en.wikipedia.org/wiki/Presumption_of_innocence
> Given a (encrypted) file named "bank_account_password'.txt", can you guess its contents?
Based on the current reasoning, the "expert" would say:
> Yes! It contains the password to a bank account!
The defendant could then "decrypt" the file and show that it was instead a JPEG picture of a bird. Case closed.
So if his protection against self-incrimination is upheld by courts, can he turn around and sue for this blatant violation of his constitutional rights?
I'm curious how on Earth one arrives at that "guess" for an encrypted drive other than reasoning "why else would he not decrypt them?" In which case his expertise as a forensic examiner is irrelevant.
Edit: I'd love to see the original testimony, but I haven't been able to find it. This article has more information though: https://www.techdirt.com/articles/20160428/07395434297/so-mu...
> The government’s second witness was Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office. He testified only that it was his “best guess” child pornography would be found on the hard drives. (Ex. J at 346). According to Tankelewicz’s understanding of the Freenet online network (in which he admits having no training), there were signs on an Apple Mac Pro computer seized with the hard drives of a user accessing or trying to access message boards with names suggestive of child pornography. (Ex. J at 306, 311-312, 339-340). In rather ambiguous testimony, Tankelewicz did not appear to say this meant any image traded over these boards was on the hard drives. (See Ex. J at 303-317, 336-340, 345-350). Instead, he identified a single image he believed there to be a “possibility” was on the drives. (Ex. J at 308-309)
However this appears to be the testimony in which the All Writs order (https://assets.documentcloud.org/documents/2783581/Granting-...) establishes the following:
> Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. (Affidavit iii! 13-31.) Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls to assist in the decrypting of those devices does not violate his privilege against selfincrimination.
In other words (in my understanding), under the foregone conclusion doctrine, the government needs to show that they know the document exists and what it contains. In this case I believe that would mean that they have to provide evidence that they know there is child pornography on the devices. And the testimony above seems to be the only thing they are putting forward as evidence to invoke the doctrine.
One of those cases where you kind of want the government to look inside the hard drive in this case (since the accused is only objecting under Fifth Amendment grounds, meaning there probably is legitimate evidence against him on those hard drives), but I can't support it because of the precedent it sets.
I have an encrypted filesystem from years ago that I've forgotten the password to, it has some vacation pictures on it that I'd like to retrieve, and every once in a while I try to guess the passphrase but so far I've been unable to.
Sure, the file might be unfortunately named, but, in this case maybe it was enough evidence to hold him?
There was a case a while back of a guy crossing a border. The LEO who inspected the laptop claims he saw CP, and somehow it was turned off before it could be preserved. In that case, they ruled that it wasn't protected by the 5th because it wasn't a search - they "knew" the evidence was there, they just couldn't access it.
With drugs, you can at least sometimes get off with proof that you didn't have intent.
For child porn, meanwhile, every major "cloud storage" is continuously monitoring your files in a manner similar to YouTubes "content id".
http://documentmedia.com/article-permalink-1966.html says this, and http://www.austintexaslegal.com/Blog/child-pornography-laws-... as well.
Do you have a cite for the law? What you say isn't true for the England; I doubt it's true for the US.
EDIT: Here's the English law.
http://www.legislation.gov.uk/ukpga/2003/42/part/1/crosshead...
http://www.legislation.gov.uk/ukpga/1988/33/part/XI/crosshea...
> Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—
> (a)that he had a legitimate reason for having the photograph [F5or pseudo-photograph] in his possession; or
> (b)that he had not himself seen the photograph [F5or pseudo-photograph] and did not know, nor had any cause to suspect, it to be indecent; or
> (c)that the photograph [F5or pseudo-photograph] was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
I can't find the citation, but there was a case brought up in my uni it ethics/law module that noted that visiting a website that then downloaded something like that in the background was sufficient to disqualify that condition from applying, as there was a prior request to visit the webpage that delivered the image. even if the website wasn't visited with the intention of the image.
and the person involved was jailed. they may have gotten out on appeal mind, but again, i can't remember more details than that to verify
If the judge cant see what is wrong with this "best guess" evidence, the judiciary has lost its marbles.
If the members of jury don't find it wrong, as society we have probably lost compassion and empathy and sense.
As marijuana legalization is probably foregone conclusion I think government is going to start with "war on sex" that will have same effects on society. New Hampshire recently passed laws that would make sex traffickers out of totally innocent people.
Sadly the elite have no moral authority and must rely on violence.
Yet another example of tyranny we must all oppose, and sadly peaceable opposition becomes less and less tenable.
The thing to be concerned about here is the ever more complicated legal theories being tested against really old laws.
Procedure and integrity are in play in almost every aspect in life. The problem is that when you give absolute power, the ones who aim to use it the most are the minority who seek to abuse the power.
Just combine them, and simply lie about false evidence instead of correct one. Since it is already obvious that the law is not considered binding if inconvenient, there really is no obstacle to overcome anymore.
But something like this could be created with three seconds in front of a terminal by a single individual. Here there's no evidence to dispute.
In summary, if you are on freenet, you are not only requesting your own files, but files on behalf of others, some of which could potentially be illegal material.
If being on freenet and requesting a key (even for someone else) is enough to get a warrant, all people using freenet from a traceable IP should immediately get off freenet.
I don't know anyone who uses it, I thought tor superseded it, but this sets a very dangerous precedent. The defense should be reaching out to a computer scientist who can explain the fundamentals to the court.
The best argument I can come up with is that digital security simply isn't understood well enough for us to have solid evidence trails.
It's far too simple for an attacker (not necessarily law enforcement, a frustrated savvy neighbour is enough) to target someone and the consequences are so dire.
The War on Drugs criminalized the possession and transfer of physical objects, in the process providing convenient mechanisms by which to persecute undesirable individuals.
Laws against the transfer of information seem to provide the same loophole, but in a digital space. To me, that's far more worrisome.
Generally speaking, when being held in jail for contempt charges, you can be held indefinitely, so long as you remain in disobedience to a court order. That last part is important, since the idea is you "hold the keys" to your own release.
However, if it's physically impossible for you to comply with said court order, you no longer hold those "keys", and can no longer be held in contempt.
That said... they're not going to believe you just "forgot" your password. The courts don't look favorably at folks who try to game the system like that, and you'd have a hard time proving otherwise.
See Chadwick v. Janecka, where a man was held in contempt for 14 years (!) for refusing to disclose where he allegedly hid funds from an overseas bank account during a divorce proceeding. They eventually let him go after they decided that being held in jail had lost its coercive effect... but again, that took 14 years.
If they can't show that, and the file might not have been accessed since it was created years ago, then I think it's unquestionably wrong to ignore the fallibility of human memory.
Oh! I know. Waterboarding him for, say, one month should be enough to make sure he actually can't remember.
As a lawyer, my advice is always to stay as far away from police as possible. Do not volunteer anything. Do not participate. Online, always work under the assumption that you are the target of an investigation. Encrypt everything. Use VPNs, preferably overseas VPNs by default and Tor where necessary. If asked, never speak to any investigator without first talking to an attorney. Do no rely on some lay interpretation of a constitution. That document is not the friend people make it out to be.
http://youtu.be/6wXkI4t7nuc
Edit for the downvote. The video has 6mio views and is considered good advice.
Don't discuss your own votes. Don't even mention them.
Do not interrupt the discussion to meta-discuss the scoring system.
It won't stop them from throwing you in jail, but if your detention is bullshit, and someone on the outside knows it, that is supposed to get you out.
If local judges were more interested in upholding the ideals of justice than in keeping their calendars tidy, ordinary people would be more engaged with the system, and more inclined to trust in the results.
What this shows is that encryption does not lock justice out and that it's really no different than papers in a safe in a person's house. If prosecutors have a valid reason to access the information they can go to a judge, get a lawful court order and serve it against the person who owns the safe.
Encryption backdoors aren't about justice. They're about the government's ability to conduct fishing expeditions: to surveil massive numbers of citizens without their knowledge and without their right to a day in court.
That's a really bad analogy. Those papers actually exist. Without the key the unencrypted data is just a bunch of random nonsense. It does not exist in any real form.
A better analogy is the case where the papers might exist, but are hidden. Can a court compel someone to help the police look for evidence that can be used to incriminate them?
Um, no, I don't agree with that at all. The point of encryption is that the files are perfectly, 100% recoverable, but only with the key.
Your version is like saying, without the combination of the safe, the papers inside don't exist in any readable form.
That's just restating your analogy again without addressing my contention about random seeming data.
By analogy: the government can compel me to open a safe, but it shouldn't be able to compel me to open something that—for all examinable intents and purposes—is a block of concrete with the facade of a safe door attached. I could certainly be held in contempt for refusing to open something that has been proved to be a safe; but holding me in contempt for refusing to open a concrete block, because they believe I have some magic power to turn it into a safe, is Kafkaesque.
This situation has actually come up before and it was ruled that while a person can be compelled to unlock a box with a physical key, a person cannot be compelled to provide the combination to a safe. [0] goes into a lot of depth on this.
[0] http://www.uclalawreview.org/the-fifth-amendment-encryption-...
You cannot draw an analogy to any real world item locked up in some way, because in those cases a key could only ever reveal an item that already exists.
Yep. The big difference is in the case of a safe they have other options if you refuse - there's not much point in pissing off the judge only to have them call a locksmith and drill your safe.
Depending on exactly how the drive is encrypted, the state may not have a plan B if he refuses to comply.
I recognize that the contempt is prior to formal charging, and thus "during" evidence gathering. but I feel like this is equivalent to the government saying: "hey, so we have no proof you did anything, but we have these 107374182400 items that might prove something. So, we want you to produce 107374182400 completely different items that might incriminate you because, well.... we cant". seems weird.
this is obviously not the first case that this has happened in[1][2]. each invoking the 5th, but it still seems strange.
[1] http://www.wired.com/images_blogs/threatlevel/2012/01/decryp... [2]https://en.wikipedia.org/wiki/In_re_Boucher
This guy needs to be fired. How in the hell can you tell that it's even images or video let alone children if it's encrypted? I'd love to see a technical explanation of how he came to that conclusion. Can the defendant sue for such a statement given that it's almost entirely fabricated?
However, an expert could hypothetically have all sorts of clue about the contents of an encrypted drive. Keep in mind that encrypted files still probably have a "last modified date" maintained by the OS, and that many viewer/player apps keep a timestamped list of recent files. If they see that realplayer claims to have played "nude_12_year_old.avi" on a "z:\" drive on a certain date, and that an encryption app opened an encrypted file a little while before that.... You can't know, but an expert could, hypothetically, make an educated guess.
Again, not saying that's what the expert did here. Just saying that this sort of conclusion is theoretically possible in some cases.
USA v. APPLE MACPRO COMPUTER, et al. (E.D. Pa., case 2:15-mj-00850) http://www.plainsite.org/dockets/2nurkco28/pennsylvania-east...
USA v. APPLE MACPRO COMPUTER, et al. (3d Cir., case 15-3537) ????
There's nothing bad about it.
Another question is whether the established legal system allowing for such measures is more harmful than beneficial.