Posted by voltaic on Thursday March 12, 2009 @ 06:37am
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Definitely an interesting case. Is it like being ordered to hand over the key to a safe (which the courts have said is OK) or is it like self-incriminating testimony (which is not)? My guess is that one main argument will be how much of the order is "fishing" for something versus how much is part of a regular discovery type process.

Posted by unicron on Thursday March 12, 2009 @ 08:19pm
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Definitely an interesting case. Is it like being ordered to hand over the key to a safe (which the courts have said is OK) or is it like self-incriminating testimony (which is not)? My guess is that one main argument will be how much of the order is "fishing" for something versus how much is part of a regular discovery type process.

Would a search warrant cover this? If police have a warrant to search a guys house, how does kicking the door in pertain to that? Say, for example, a suspect lived in a house with 10' thick concrete walls and a 3 ton steel door, could the court order him to open it because of the warrant? If so, does that differ from this case? Like you said below with the safe analogy. Does a warrant only mean "the stuff the law can get into on their own"?

Posted by voltaic on Friday March 13, 2009 @ 07:08am
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Would a search warrant cover this? If police have a warrant to search a guys house, how does kicking the door in pertain to that?

It allows them to. Consider how a home is breached if no one answers the door within about three seconds of the knock/announce (assuming it isn't some no-knock bullshit but that's a separate issue)

Say, for example, a suspect lived in a house with 10' thick concrete walls and a 3 ton steel door, could the court order him to open it because of the warrant? If so, does that differ from this case? Like you said below with the safe analogy. Does a warrant only mean "the stuff the law can get into on their own"?

Well a warrant allows the law to search for and appropriate evidence of a crime. It's an enforced discovery process. It applies not only to SWAT teams raiding meth houses but state AGs investigating Enron and shit. After that, it's just a matter of access. If the law has a warrant, they can compel you to open your door or the safe or whatever to "search" for evidence. If you fail to do so, you can be charged with obstruction and maybe contempt of court and other stuff. Hey, government peeps do it all the time to take the hit for whatever big dog they work for.

That's the interesting thing with this case. They don't want to decrypt this drive to "search" it per se, they want to decrypt it to show kiddie porn during the court proceeding. So if the defendant types in the key, this could be considered seld-incrimination during trial (aka 5th amendment). I think it would be quite different if, for instance, the whole laptop (not just the Z: drive) was encrypted and was being searched as part of an ongoing investigation or something (aka discovery process). Just like in a court-room they don't bring in a locked safe and demand that you open it right there: in a courtroom you are giving testimony, and that is what the 5th is about.

Posted by Stealth on Thursday March 12, 2009 @ 09:14am
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Definitely an interesting case. Is it like being ordered to hand over the key to a safe (which the courts have said is OK) or is it like self-incriminating testimony (which is not)? My guess is that one main argument will be how much of the order is "fishing" for something versus how much is part of a regular discovery type process.

So if the courts can get a safe cracker in order to go around the safe, why require the defendant to give it up? I hadn't heard of a case about the safe before ( but I hadn't looked) but that's the analogy I was thinking about. Even if the defendant didn't want to give up the safe, it could be drilled. Not so easy with whole drive encryption.

And this all stems more from the fact that the border patrol can demand to search the laptop/electronics device when you come across.. something that I still believe is messed up, encrypted, personal, private, whatever.

Posted by voltaic on Thursday March 12, 2009 @ 03:04pm
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So if the courts can get a safe cracker in order to go around the safe, why require the defendant to give it up? I hadn't heard of a case about the safe before ( but I hadn't looked) but that's the analogy I was thinking about. Even if the defendant didn't want to give up the safe, it could be drilled. Not so easy with whole drive encryption.

I don't think that the courts order safecrackers to pop open locks very often, but they can order a defendant to give up the key or combination. The difference here is an important one: data on an encrypted hard drive isn't otherwise accessible. Whereas a physical safe could be cracked by a locksmith without the permission of a defendant (given an appropriate court order, etc), encryption cannot; this is similar to the defendant who is witness to his own actions, who cannot be compelled to reveal them but the prosecution must rely on third-party testimony, video tape, etc. Data owned and encrypted by the accused is unique.

And this all stems more from the fact that the border patrol can demand to search the laptop/electronics device when you come across.. something that I still believe is messed up, encrypted, personal, private, whatever.

Yes, but this has nothing to do with the idea in general. Make a thought experiment out of it: pretend the law only made things illegal that you think should be illegal, that they only prosecuted with solid evidence, that expensive lawyers didn't get white collar criminals off the hook, and whatever else you want according to your own values (whatever they might be). Now: in such a perfect world scenario, what would you think about compelling (or not) to open an encrypted drive? Seriously, it's a good thought experiment. I haven't come up with an answer for myself yet either.

Posted by Stealth on Friday March 13, 2009 @ 04:26am
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So if the courts can get a safe cracker in order to go around the safe, why require the defendant to give it up? I hadn't heard of a case about the safe before ( but I hadn't looked) but that's the analogy I was thinking about. Even if the defendant didn't want to give up the safe, it could be drilled. Not so easy with whole drive encryption.

I don't think that the courts order safecrackers to pop open locks very often, but they can order a defendant to give up the key or combination. The difference here is an important one: data on an encrypted hard drive isn't otherwise accessible. Whereas a physical safe could be cracked by a locksmith without the permission of a defendant (given an appropriate court order, etc), encryption cannot; this is similar to the defendant who is witness to his own actions, who cannot be compelled to reveal them but the prosecution must rely on third-party testimony, video tape, etc. Data owned and encrypted by the accused is unique.

They can order you to yes, but if you still don't then what, contempt of court? Probably better then what the end result could be.

And this all stems more from the fact that the border patrol can demand to search the laptop/electronics device when you come across.. something that I still believe is messed up, encrypted, personal, private, whatever.

Yes, but this has nothing to do with the idea in general. Make a thought experiment out of it: pretend the law only made things illegal that you think should be illegal, that they only prosecuted with solid evidence, that expensive lawyers didn't get white collar criminals off the hook, and whatever else you want according to your own values (whatever they might be). Now: in such a perfect world scenario, what would you think about compelling (or not) to open an encrypted drive? Seriously, it's a good thought experiment. I haven't come up with an answer for myself yet either.

I'm only somewhat tracking you on this.. but no matter what, I think an individual should be allowed some form of privacy and protection against self incrimination. if the technology exists that made encrypted drives readable easily, then so be it, it becomes like a safe and can be opened and read. Even when that happens.. they shouldn't force you to give up the key.. if they want it, they should go after it.

Posted by voltaic on Friday March 13, 2009 @ 07:12am
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They can order you to yes, but if you still don't then what, contempt of court? Probably better then what the end result could be.

Exactly: contempt or court, obstruction of justice, interfering with an investigation, etc. But yeah, certainly better than a sex offender charge related to kiddie porn for this guy.

I'm only somewhat tracking you on this.. but no matter what, I think an individual should be allowed some form of privacy and protection against self incrimination. if the technology exists that made encrypted drives readable easily, then so be it, it becomes like a safe and can be opened and read. Even when that happens.. they shouldn't force you to give up the key.. if they want it, they should go after it.

I agree with you. But we have to consider this within the framework of our current society's laws. And as I said in my post above, you're right that it would be self-incriminating if he decrypted in the courtroom, but in my view it's not so clear that it would be this if they had forced him to decrypt during investigation and compiling evidence, which would have resulted in the contempt, etc. charges but then not much else for lack of evidence.

Posted by Stealth on Wednesday March 11, 2009 @ 04:07pm
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http://news.cnet.com/8301-13578_3-10172866-38.html

A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.

Well now that's no good at all. Damn.. that sucks. I hope the appeal works. He shouldn't have to do that.

As a follow on thought, I wonder if they think they could force a government user to decrypt their laptop drive. It might pay to have like a US unclass sticker on the laptop.. say your a contractor and use that to get out of it.

Posted by Krux on Friday March 13, 2009 @ 01:51am
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http://news.cnet.com/8301-13578_3-10172866-38.html

A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.

Well now that's no good at all. Damn.. that sucks. I hope the appeal works. He shouldn't have to do that.

Yea, this case is interesting, because on the one hand, all pedophiles are scum and should rot in jail. But then on the other hand, you shouldn't be required to incriminate yourself.

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

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

So with the grand jury clause in the fifth amendment, it looks like he doesn't actually have a choice here.

Posted by voltaic on Friday March 13, 2009 @ 07:13am
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So with the grand jury clause in the fifth amendment, it looks like he doesn't actually have a choice here.

Yeah and the 5th is already being eroded with the courts allowing eminent domain to be used to take private property for private use, but hey fuck it right?

Posted by Stealth on Friday March 13, 2009 @ 07:43am
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So with the grand jury clause in the fifth amendment, it looks like he doesn't actually have a choice here.

Yeah and the 5th is already being eroded with the courts allowing eminent domain to be used to take private property for private use, but hey fuck it right?

Isn't that some gh3y shit right there! And taking it for other private companies to develop tax rich resources even.. SOOOO bad.

Posted by Stealth on Friday March 13, 2009 @ 04:20am
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http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

So with the grand jury clause in the fifth amendment, it looks like he doesn't actually have a choice here.

See i read the Grand Jury part to only apply to "No person shall be held to answer for a capital, or otherwise infamous crime". " nor shall be compelled in any criminal case to be a witness against himself" is a separate section, at least that's how I read it. But we all know how well that works.