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Is it legal? (Force decryption or not?)


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Is it legal? (Force decryption or not?)
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SpecMode
Wait what
 
Join Date: Feb 2005
Location: El Dorado County, California
 
2012-01-26, 01:52

Are you sure you linked to the correct case here? Because the one I'm reading from that link is relating to a defendant being compelled to sign a consent agreement, not to personally disclose information – which, the document itself notes, is considered protected:

Quote:
Because the consent directive here is not testimonial in nature, compelling petitioner to sign it does not violate his Fifth Amendment privilege against self-incrimination.

In order to be "testimonial," an accused's oral or written communication, or act, must itself, explicitly or implicitly, relate a factual assertion or disclose information. [...] It is consistent with the history of and the policies underlying the Self-Incrimination Clause to hold that the privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information.
In fact, in one of the cited cases, it is stated that "the act of producing the documents at issue in this case is privileged", and that "the act of producing them also would have 'communicative aspects of its own' […] and that hence respondent was entitled to assert his Fifth Amendment privilege against compelled self-incrimination rather than produce the records." I see little difference here between producing documents (the records referenced in the linked case) and producing a password granting access to the digital equivalent of such documents - an act that could implicitly result in the disclosure of incriminating information.
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billybobsky
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Join Date: May 2004
Location: Inner Swabia. If you have to ask twice, don't.
 
2012-01-26, 01:58

Er. There is a big difference. In one case the documents are a form of testimony because they, as facts, themselves have to be given, in the other case the documents are already in the hands of the prosecution obtained by legal warrant and the compelled act of the suspect doesn't relate any information. It is not as if the prosecution is requiring the suspect to inform them of the details contained within the encrypted files as would be required if, say, they were written in a coded language only the suspect knew.

Of course this is all moot -- the suspect has been told she must hand over the password (or decrypted contents) ...


I think everyone is having problems with the fact that the documents physically exist on that hard drive. Those physical documents are encrypted, through a tool. If the documents required the woman's finger print to open -- there would be no question that she would be obliged to provide it. There is no difference here.



Let me go further: if the woman had the password on a slip of paper, hidden. she could be compelled to reveal its location as long as the prosecutorial request was based upon other evidence obtained: ie a friend telling them that the password was written on a slip of paper. the evidence in the case obtained by legal warrant reveals that there is a password to open the encrypted files. from this information, the prosecution can compel the suspect to provide the files or the password.
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SpecMode
Wait what
 
Join Date: Feb 2005
Location: El Dorado County, California
 
2012-01-26, 02:01

The difference is in the method used to obtain said documents. If they were obtained by an outside party (and not from the defendent themselves), then of course they wouldn't be covered by the Fifth. However, the case is quite clear that the defendent could not be compelled to produce the documents themselves, as such an act could be considered a disclosure of potentially incriminating information, and thus protected by statute.

Also, to answer your edit: this case has yet to be resolved, as it is almost certain to be appealed (likely all the way up to the Supreme Court). It will be interesting to watch, in any case.
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billybobsky
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2012-01-26, 02:08

The documents aren't being provided by the suspect if she reveals the password. there is in fact NO information being exchanged. IE the prosecution knows the existence of the encrypted files. Arguing that they cannot get the password is tantamount to saying that even though a prosecution knows a suspect's uncrackable safe to exist, they shouldn't be allowed to get the location of a key for it from the suspect.

Here:

http://en.wikipedia.org/wiki/In_re_Boucher

Last edited by billybobsky : 2012-01-26 at 02:29.
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SpecMode
Wait what
 
Join Date: Feb 2005
Location: El Dorado County, California
 
2012-01-26, 02:14

I did see that case mentioned in the article linked in the first post; the problem with citing that case is that the defendent eventually complied with the request (i.e., there was never a final judgement that compelled him to provide the password, which he never did in fact provide - he provided access to the unencrypted contents of the drive). As such, there is no legal precedent associated with the case to support your argument. Another quote from the article:

Quote:
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?
If this case makes it all the way up, it may definitively answer the question and finally set that precedent, and put the argument to rest.
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billybobsky
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2012-01-26, 02:17

Uh. That's not true. Sessions (the Judge) directed Boucher to provide the password (or the decrypted files). He complied with that order. That's judicial precedent.

Last edited by billybobsky : 2012-01-26 at 02:29.
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Moogs
Hates the Infotainment
 
Join Date: May 2004
Location: NSA Archives
 
2012-01-26, 12:20

The answers to these and other societal conundrums can be found on the Tim Horton's doughnut rack. It has been three long months since I've had a Tim Horton's doughnut, and as an American fixated on entertainment and gluttony instead of logic and liberty, I concede the answer must be "All Roads Lead to Tim Horton's".

You know how Tom Hanks felt about the fire he created?


...ya that's how most people feel when they have a Tim Horton's rapturous ring of doughy heavenliness, ascending you into God's hands.



I would like to now eat Tim Horton's chocolate and maple frosted doughnuts until I have to be put on life support. Because despite my not thinking this particular law is a big deal, there are lots of other ones that are and I don't see how they'll get fixed in my lifetime, given the system we live under. So pass the fucking doughnuts already. It's lunch time!


Just sayin...

...into the light of a dark black night.
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billybobsky
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2012-01-27, 20:01

Moogs: progress isn't necessarily a forward pointing arrow. If you see something wrong with society (and you aren't a fucking nut job), you should do everything in your power to fix it. Leaving it to later generations merely lets the arrow of progress point backwards a little while longer.
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Moogs
Hates the Infotainment
 
Join Date: May 2004
Location: NSA Archives
 
2012-01-28, 00:16

Oh don't worry; I don't have any faith at all that Gen Y can solve these problems, based on their average level of education (what passes for "high school graduate" etc) and attention span.

I was mostly having a bit of fun there. We should all do what we can. The problem is only about 10% of us actually do. The apathetic couch potato is far more dangerous to this country's future than a random muslim with a bomb strapped to his chest. Despite what some brainwashed voters in this country believe.

...into the light of a dark black night.
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Gargoyle
http://ga.rgoyle.com
 
Join Date: May 2004
Location: In your dock hiding behind your finder icon!
 
2012-01-30, 14:16

Oh, I can see that working... Let's follow a theoretical scenario

Them: "Can we have your password."
Me: "No"
Them: "Oh, OK. Well then can you decrypt the files and give us those."
Me: "Hmmm, I suppose. Here you go"
Them: "They're empty!"
Me: "No, they are full of Tabs and Spaces."
Them: .....
Me: "I get easily bored!"
Them: .....
Me: "Can I go now?"
Them: .....

OK, I have given up keeping this sig up to date. Lets just say I'm the guy that installs every latest version as soon as its available!
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kscherer
Which way is up?
 
Join Date: Aug 2004
Location: Boyzeee
 
2012-01-30, 15:09

^ that's actually kind of funny.
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Brad
Selfish Heathen
 
Join Date: May 2004
Location: Zone of Pain
 
2012-01-30, 15:44

Quote:
Originally Posted by Gargoyle View Post
Them: "They're empty!"
Me: "No, they are full of Tabs and Spaces."
Them: .....
I guess I need to start programming in Whitespace.
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Mugge
Thunderbolt, fuck yeah!
 
Join Date: Jan 2005
Location: Denmark
 
2012-01-30, 15:50

I can easily see how the police can persuade you spill your password if they have both you and your disk in possession. Just look at poor* private Manning, even democratic countries will go all the way if you cross them badly enough.

A more interesting question would be if a TrueCrypt volume with a hidden OS would be any safer? My thinking is that if the police got a hold of a Mac and saw that it was not using File Vault, but TrueCrypt, then they should definitely be looking for that hidden OS. You might be able to deny it plausibly, but if you were under suspicion of stealing precious diplomatic cables, they should still at least try and extract the password for the hidden OS too.


*) My personal opinion is that he had it coming, but that besides the argument in question.
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Dave
Ninja Editor
 
Join Date: May 2004
Location: Bay Area, CA
 
2012-01-30, 16:50

Quote:
Originally Posted by Brad View Post
I guess I need to start programming in Whitespace.
That's brilliant! It could spawn a whole new programming competition — maximizing the number of languages in which the same piece of code is valid
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turtle
Lord of the Rant.
Formerly turtle2472
 
Join Date: Mar 2005
Location: Upstate South Carolina
 
2012-02-24, 22:27

I don't have time do really add more to this now, but thought this was worth sharing: Note to self: Encrypt data, memorize password

Short version, 5th Amendment does protect what is in your head, not your pocket.

Louis L'Amour, “To make democracy work, we must be a nation of participants, not simply observers. One who does not vote has no right to complain.”
Visit our archived Minecraft world! | Maybe someday I'll proof read, until then deal with it.
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