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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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turtle
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2012-01-23, 20:49

Can American's be forced to decrypt their HDD?

I modified the title to be more open from the CNet article. This is a hard topic for me and I wanted to know what you all thought and even more so since this is a global forum the thoughts of those outside of the US. Are there laws in your country that already rule over this debate here in the US?

I have the hardest time the the fact that if I were to be required to decrypt my drive I would have to provide some testimony to enable the unlocking. You can do what you want and crack it if you can, but forcing me to provide the "key" (mental and non-tangible forcing this to be a testimony of sorts) may or may not provide incriminating evidence.

However, if I were to have a physical safe with paper documents in it I would be expected to provide access to those papers. Why would providing access to my data be any different?

Background on this case:
Quote:
Ramona Fricosu, who is accused of being involved in a mortgage scam, has declined to decrypt a laptop encrypted with Symantec's PGP Desktop that the FBI found in her bedroom during a raid of a home she shared with her mother and children (and whether she's even able to do so is not yet clear).
The judge in this case says yes, she should have to provide the decrypted files.
Quote:
I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.
The prosecution is quick to point out that they are not requiring her to divulge the "key", just decrypted files.

A Vermont judge agrees with this case as mentioned in this earlier case:
Quote:
A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.
For the side of you can't force me to provide:
Quote:
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).
Quote:
Originally Posted by PDF Short version
Compelled testimony that communicates information that may "lead to incriminating evidence" is privileged even if the information itself is not inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6 (1988).

Hubbell at 2044.

Accordingly, the Court quashes the subpoena requiring Defendant to testify -- giving up his password -- thereby protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination.

SO ORDERED.
So can I or should I be forced to provide details that can incriminate me? While I don't have anything to hide and would be willing to decrypt due to that lack of needing to hide something it still is one of those issues where if nothing is done we might lose one more freedom. Is this losing one more freedom, or something we never really had privacy on to begin with?

At this point, I'm of the persuasion that I should not be force to divulge anything. The Prosecution should be forced to gain all details and evidence as thought I were dead and unable to offer any support in the case that may be against me.

Side bar: That's some pretty good encryption.

Don't worry, I'm not being monitored or in a case personally.

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billybobsky
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2012-01-23, 21:05

Its not a loss of an additional freedom. A warrant for the contents of the computer include the decrypted files. If a suspect does not provide the details to decrypt them, they should be able to be charged with obstructing an investigation and compelled to allow the police to complete the actions defined in the warrant. This is no different than the safe example.

This is one place where the Bill of Rights protection against self-incrimination hasn't been brought up to modern interpretations. A password isn't a statement that of-itself is incriminating, and thus doesn't represent self-incrimination when revealed.

I'd rather have the prosecution have the ability to compel a password than the government to be provided backdoors to every bit of software out there.
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Dave
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2012-01-23, 21:49

You can't plead the 5th to keep investigators out of your home, safe, or safety deposit box. As much as I don't like it, I don't see why providing either the password or a decrypted copy of the data should be any different.

When I was a kid, people who did wrong were punished, restricted, and forbidden. Now, when someone does wrong, all of the rest of us are punished, restricted, and forbidden... and the one who did the wrong is counselled and "understood" and fed ice cream.
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JohnnyTheA
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2012-01-24, 01:39

Yes, totally legal. If it wasn't legal you could prevent cops from searching your house if you had combination lock on your door...
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SpecMode
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2012-01-24, 01:47

Quote:
Originally Posted by JohnnyTheA View Post
Yes, totally legal. If it wasn't legal you could prevent cops from searching your house if you had combination lock on your door...
Actually, if they had a warrant, they'd just break the door down if they couldn't get the combo. Whether or not you actually give them the combo becomes irrelevant. The difference between the two concepts is that authorities can brute force a door open without your active cooperation, but they can't reasonably brute force encryption past a certain point without some kind of backdoor - the only sure method they have for obtaining that evidence requires you to disclose the password, thus potentially incriminating yourself.
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Dave
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2012-01-24, 02:01

Quote:
Originally Posted by SpecMode View Post
Actually, if they had a warrant, they'd just break the door down if they couldn't get the combo. Whether or not you actually give them the combo becomes irrelevant. The difference between the two concepts is that authorities can brute force a door open without your active cooperation, but they can't reasonably brute force encryption past a certain point without some kind of backdoor - the only sure method they have for obtaining that evidence requires you to disclose the password, thus potentially incriminating yourself.
So... I'm only allowed to say no because they can knock my door down? That rather misses the point, doesn't it? I mean what good does the right to "plead the 5th" do you if it's only there in instances where they don't need you to plead anything at all? For the 5th amendment to mean anything, wouldn't it have to applied to digital evidence the same way it is physical evidence?

When I was a kid, people who did wrong were punished, restricted, and forbidden. Now, when someone does wrong, all of the rest of us are punished, restricted, and forbidden... and the one who did the wrong is counselled and "understood" and fed ice cream.
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SpecMode
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2012-01-24, 02:13

Quote:
Originally Posted by Dave View Post
So... I'm only allowed to say no because they can knock my door down? That rather misses the point, doesn't it? I mean what good does the right to "plead the 5th" do you if it's only there in instances where they don't need you to plead anything at all? For the 5th amendment to mean anything, wouldn't it have to applied to digital evidence the same way it is physical evidence?
The pertinent issue here, as regards the Fifth Amendment, is whether or not authorities can force a person to give up a password to an encrypted data volume. The Fifth Amendment doesn't touch on the issue of search and seizure (that's the Fourth). I was just illustrating the difference between the situation JohnnyTheA described (using a combo lock on a door to keep cops out) and the encrypted drive scenario. Either way, if the authorities do have the ability to acquire the evidence without the subject's cooperation (say, by breaking down the door to bypass the combo lock), they can do so as long as they have the appropriate warrant.

All the Fifth Amendment provides you in this scenario is the right to refuse that cooperation if it would incriminate yourself. It doesn't prevent authorities from acquiring evidence through other legal means.
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turtle
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2012-01-24, 09:52

Right, that's the big issue here. It's not about can the authorities gain access on their own. In the case of the door (or safe really) they would simply bypass the locking mechanism and access the contents. However this is without the accused providing anything (assuming there is a warrant of course).

They can have my HDD and do what they will with it. They can crack the encryption all they want. There is nothing to stop them from controlling the hardware and working to "bypass the locks" to get to the data.

See, if encryption wasn't so good this wouldn't be an issue. The problem is that encryption is stronger than the Feds ability (in a reasonable time) to crack. This means they don't like it an want to force the information from me that might (or might not) incriminate me.

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Last edited by turtle : 2012-01-24 at 10:12.
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billybobsky
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2012-01-24, 10:47

Again. It isn't info *from* you. It is a password they are asking for. The password doesn't give them evidence of wrong doing that wasn't accessible from the terms of the warrant.
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SpecMode
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2012-01-24, 12:57

Quote:
Originally Posted by billybobsky View Post
Again. It isn't info *from* you. It is a password they are asking for. The password doesn't give them evidence of wrong doing that wasn't accessible from the terms of the warrant.
It all comes down to whether the password itself is considered protected information by the Fifth Amendment. As far as I know, at present it is considered protected because the act of disclosing it could reveal evidence that would incriminate one's self. It's a stretch, I'll admit, but to my understanding, that's the current legal precedent (until it is inevitably revised/clarified by the Powers That Be).
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billybobsky
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2012-01-24, 15:31

Quote:
Originally Posted by SpecMode View Post
It all comes down to whether the password itself is considered protected information by the Fifth Amendment. As far as I know, at present it is considered protected because the act of disclosing it could reveal evidence that would incriminate one's self. It's a stretch, I'll admit, but to my understanding, that's the current legal precedent (until it is inevitably revised/clarified by the Powers That Be).
Er. You cannot be compelled to state evidence against yourself. There is no reasonable expectation that passwords themselves constitute evidence against yourself. Unless your password is 'imagirafferaper' and you are charged with giraffe rape, then the issue is touchy.

Stated differently: the argument that you shouldn't be forced to do things that might let other evidence be revealed doesn't hold water. People with safes, deposit boxes, etc are often obliged to open them. This is no different.
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Bryson
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2012-01-24, 16:20

I agree with 'Bobsky: Keys are information too. (In the case of an actual key, the information is the shape of the key.) This claiming of special status for "computer" things actually harms the case for getting the authorities to apply regular due process (in the case of something like SOPA.) You can't argue special treatment only when it suits you.

I guess the other key part of this argument is the fundmental difference between a judge ordering you to do something, and a police officer / border official / TSA agent ordering you to do something. I think it's the latter case that people are worried about.

I am not saying she is engaged in small-scale mining operations for precious metals, but I have never seen her associate with any gentlemen of African American origin who are suffering financial embarrassment.
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SpecMode
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2012-01-24, 16:28

For the record, I'm not personally arguing for/against a specific interpretation of the law, only what I understand to be standing precedent (or a lack thereof).
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709
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2012-01-24, 18:00

I think the crux of this is allowing an agency access to not only the information they're looking for specifically, but allowing them access to all data on a HD. Sure, if my HD is filled with nothing but [x]porn, fine, but if the HD contains my emails, browsing history, etc. and maybe a small folder of [x]porn to boot, giving a password to the entire shebang may indeed violate my right to not incriminate myself, because I may be way more into [y]porn, which they never would've known had I not given them my password.

Ultimately, a HD is a lot more fluid than a safe or a bank box - and a lot more personal. You put specific objects in the former, the latter is an ever-changing container of your life.

So it goes.
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Bryson
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2012-01-24, 19:21

Clearly, the answer is keep all your Y porno on a separate drive (with a different password) to your X porno.
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billybobsky
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2012-01-24, 19:33

Only the warrant will likely be for both.
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kscherer
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2012-01-24, 19:39

Quote:
Originally Posted by billybobsky View Post
Again. It isn't info *from* you.
If it comes *from* your head, it is *from* you.

The problem with this whole situation is the failure to understand the original framing of the Constitution. Our founders wanted to insure that the government did not have the right or ability to force individuals into the admission of crimes they may or may not have committed. Thus, the framing of the 4th and 5th Amendments to the Constitution. The 4th Amendment was put in place to insure the government had no authority to enter your home/office, etc. unless a judge signed off on a warrant, which itself has to be based on supporting evidence. The fifth Amendment specifically protects the human mind! One cannot be compelled to enter **anything** into evidence which might serve to incriminate his/her self.

The wording states: "nor shall be compelled in any criminal case to be a witness against himself". **Any** evidence that is entered serves as a "witness" for or against the accused. If I am compelled to release any information that "can be used against me", then my fifth Amendment right has been violated. Period.

Our modern, "progressive" society is "progressing" away from the Constitution toward an all-powerful government where the individual has less value than the collective, (and fewer rights as a result), and this case is just another glaring example of how powerful that urge has become.

By our "modern" standards, the judge is right because he says so, and because the judiciary now serves to protect the government, rather than the people. This woman is not being "protected" by the government, nor has her innocence been presumed. She is being forced at the point of a gun to reveal information that may serve to incriminate her, and this as a result of her presumed guilt.

When you are presumed to be innocent, the burden of proof falls on the government. They must make their case without your assistance, and the judge, jury and defense do all in their power to get you off, **unless** the government is capable of making its case…entirely on its own, and without any coercion of the judge, jury, or defense.

When you are presumed to be guilty, the burden of proof falls on the accused. You must make your case entirely without any help, and the judge, jury and prosecutor do all in their power to insure you do not get a fair trial, **unless** you have enough money to buy them all off. Coercion is everywhere.

The second system is precisely what the founders wished to prevent, and precisely why the 4th and 5th Amendments are worded the way they are. They LIMIT the power of the government. They do not GIVE it power.

Also, these ideas floating around that things inside your head somehow do not belong to you specifically are dangerous. My thoughts belong to me. They are my property, and they are protected by the 5th Amendment. As soon as you lose sight of that, you lose sight of everything that defines freedom.

Now, if this woman were being called as a witness against someone else, then the government would have the authority to order her to testify as to the information in her laptop. But she is not being ordered to testify against someone else, she is being ordered to testify against herself. To testify is to "serve as evidence or proof of something's existing or being the case", and by releasing what she has in her head, she is validating the existence of information that the government is, on its own, unable to prove exists. **That** is self incrimination.

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709
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2012-01-24, 22:17

Your "big brother" posts always make me check my supply of tin foil kscherer.

Just sayin'.
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billybobsky
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2012-01-24, 22:40

Quote:
Originally Posted by kscherer View Post
Now, if this woman were being called as a witness against someone else, then the government would have the authority to order her to testify as to the information in her laptop. But she is not being ordered to testify against someone else, she is being ordered to testify against herself. To testify is to "serve as evidence or proof of something's existing or being the case", and by releasing what she has in her head, she is validating the existence of information that the government is, on its own, unable to prove exists. **That** is self incrimination.
No.


She isn't testifying against herself. She isn't testifying what is on her laptop. She is merely being required to produce a password that allows the government access to something they already have a warrant for.

Self incrimination on the other hand is being coerced to make statements that may or may not be incriminating. A password is NOT one of those. Nor is giving your name (for instance, already decided as not protected under either the 1st or 5th amendment).

This isn't ANY different than the safe example.


Look: you either admit that by the warrant she must provide full access to information contained in a safe (in this case it is digital) or you let the government get the right to force backdoors into every encryption program out there.
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Moogs
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2012-01-24, 23:22

Don't have a problem with this at all. Material on a hard drive is not testimony, it's (technically) physical evidence. So the state is basically asking for cooperation in the same way they always do when you're served with a warrant to search your home for weapons, incriminating papers, etc. The safe analogy is a good one. This is a digital safe. Judge says she has to unlock it so litigators and law enforcement can examine contents for presence of evidence.

Not much to see here IMO.

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alcimedes
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2012-01-24, 23:23

If you make your password a statement that admits to a crime, would you be protected?
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Moogs
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2012-01-24, 23:46

I don't consider a password to be a statement / testimony anymore than I consider a physical key or padlock combination to be a statement / testimony, but that's just me. I suppose you could argue it but it enters the realm of a lawyerly two-step and leaves the realm of common sense at that point IMO. Otherwise let's just have every criminal in the world put their evidence on encrypted hard drives and then plead the 5th and see how well ole lady justice does with the strict interpretation from that point.

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turtle
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2012-01-24, 23:49

Quote:
Originally Posted by alcimedes View Post
If you make your password a statement that admits to a crime, would you be protected?
In this case she wouldn't because she isn't being asked to give up the key, only to unlock the encryption of the data "without having shoulder looked over".

I still have the view that I must not be a part of the prosecution trying to prove it's case. Crack the code if you think it's worthy, otherwise I'm innocent until proven guilty. This case make assumptions on whats in the HDD and without it there is no proof it would seem. Unlike the safe, they have access to the data on my drive. They can do what they want with it.

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Ebby
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2012-01-25, 01:04

Quote:
Originally Posted by billybobsky View Post
A password isn't a statement that of-itself is incriminating, and thus doesn't represent self-incrimination when revealed.
I'm changing all my passwords to "I'm Guilty". There, that should be covered now.

EDIT: Wow I thought I was being cleaver... I should read the whole post next time.

So what if encryption was seen as a way of destroying a paper trail. For example, if I were running a shady business and didn't want a paper trail, I would shred/burn documents. If I understand it, that act is not technically illegal until I am served or told to keep the evidence. Only after that, if I continue, can I get in trouble for destroying evidence. What if encryption was seen simply a real-time digital shredder/torch to destroy digital documents after they were no longer used?

The glaring difference being the possibility of data reconstruction. Burned is gone forever, shredded is obfuscated data that can be reconstructed with time, encryption is obfuscated data that can be reconstructed with time but with a user-specific backdoor.

wow, head hurting.

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Last edited by Ebby : 2012-01-25 at 01:22.
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kscherer
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2012-01-25, 01:13

-A door can be broken down. If I refuse to open it, it will be damaged at my own expense. But it will be opened.

"I don't have the key to this door. You'll have to break it down."

-A safe can be cut open. If I refuse to open it, it will be damaged at my own expense. But it will be opened.

"I don't have the combination to this safe. You'll have to cut it open."

-An encrypted laptop drive can be decrypted. If I refuse to decrypt it, it will be damaged at my own expense. But it will be decrypted.

"I don't have the password to this computer. You'll have to decrypt the data yourselves."



Remember this the next time a warrant is served for suspicion of, say, marijuana. The warrant gives the state the right to enter your home and hunt for those pesky drugs, but they just cannot find them. But they know they're there, they just know it. And they can prove it just as soon as you tell them where they are. And you are going to tell, or you'll be locked up until you do, dammit! After all, you know the secret location, and the state has determined that you must give up that secret.

With a proper warrant the 4th Amendment gives the state the right to collect evidence. But read it very carefully. In no way does the 4th Amendment require the people to cooperate with the state. The 5th gives me the right to refuse to cooperate, and places the burden of proof back onto the state. They must prove my guilt without my cooperation!

But, hey, when they come knocking on your door, you go right ahead and tell them about the secret weed hiding spot. Bet you'll change your mind when that happens!

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nikstar101
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2012-01-25, 16:42

It is a tough one. I kind of agree that the state has to prove you guilty and shouldn't have to get you to aid their case by unlocking the evidence. But whatever i (or we) believe clearly both the UK and US government and court system see differently.

I guess the only thing that may help in this scenario is if you used something like Truecrypt that has a clever system that should you type in a password under duress then it opens a different encrypted section with a different set of files. So you have two encrypted sections, the real one with one password and a second one with pretend files and a different password. If you are forced to type in a password, type in your duress password and then you have decrypted the volume as requested. I believe that it is also impossible to tell that there is another hidden partition.

But to be honest i ain't got nothing to hide!
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billybobsky
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2012-01-25, 18:22

You are just giving the government the rationale for installing backdoors into every bit of commercial encryption software. Unintended consequences and all that...
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kscherer
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2012-01-25, 18:43

Quote:
Originally Posted by billybobsky View Post
You are just giving the government the rationale for installing backdoors into every bit of commercial encryption software. Unintended consequences and all that...
I get where you're coming from, but I'm not giving the government anything. There is no Constitutional authority for the government to involve itself in anything of the sort. Should they do so, they are breaking the law, which would come as no surprise, considering our government no longer abides by the law in the first place.

That is the unfortunate side of this: The government is breaking the law, which will lead to "reform" in which the government will further break the law.

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SpecMode
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2012-01-25, 19:56

Quote:
Originally Posted by billybobsky View Post
You are just giving the government the rationale for installing backdoors into every bit of commercial encryption software. Unintended consequences and all that...
Translation: "By exercising your Constitutional rights (as currently legally understood), you're giving the government justification to circumvent your ability to exercise those rights."

I don't buy that argument. If it's a right guaranteed by the Constitution (as, to the best of my knowledge, it is until determined otherwise), there is no reasonable justification for being denied that right. Now, if the Powers That Be determine that allowing backdoors in encryption software to provide for a means to circumvent such protection is justifiable, then we would be back to the same rules as apply to search and seizure of personal property and effects, as covered by the Fourth Amendment. If you invoke the Fifth Amendment and refuse to provide your password, they'll just get a warrant to break the encryption and get the evidence that way.
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billybobsky
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2012-01-26, 01:27

Uh. So I just read some case law, and though I am not a lawyer, the current SCOTUS stance is that this sort of compelled speech doesn't constitute a testimony and thus *isn't* protected.

http://supreme.justia.com/cases/federal/us/487/201/

Sorry, guys, but everyone who has said case law says this speech is protected is wrong. It actually looks like the Judge in Michigan mis-read the two cases he cites, which is very odd. Doe v. US explicitly states that "testimony" has to relate to a statement of fact. US v. Hubbel cites Doe v. US because the case relates to actual factual information compelled from the suspect. This meets the minimum definition of testimony which a password does not. Subsequent cases have of course, followed this approach.

The most relevant case law is Boucher II (the end result of the vermont case turtle mentions).

Last edited by billybobsky : 2012-01-26 at 01:55.
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