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No, it isn't. You are wrong. You're comparing apples and oranges. The correct comparison is getting a warrant to search someone's house and finding a piece of
by ohazi 11y ago
No, it isn't. You are wrong.
You're comparing apples and oranges. The correct comparison is getting a warrant to search someone's house and finding a piece of paper with a strong cryptogram on it. They plead the fifth, and the story ends.
The secret that unlocks the cryptogram belongs to the owner, not to Apple or anybody else. It lives in their mind. You can get a warrant to search someone's house, but you cannot compel someone to share a secret. That has been true from day one, but you're trying to weasel your way around this fact because you're afraid of terrorists and you trust the police.
Sorry, but it just doesn't work that way.
- tptacek 11y agoAre you a lawyer, or have you studied 5A jurisprudence? My impression is that it's not as simple as you're making it out to be. The 5A doesn't prevent a bunch of other compelled incriminating actions, and compelled production of passwords may eventually survive 5A scrutiny at SCOTUS as well. Prohibitions on compelled self-incrimination predate the bill of rights, and were intended as a measure to limit torture, not as a general privilege of the accused to conceal evidence.
- ohazi 11y agoNo, I'm not a lawyer, and I'm deliberately simplifying my example to make an argument. However, I have looked into 5a jurisprudence, and fully agree that there are some scenarios that are not so simple, e.g. if they really did have certain other evidence against you that specifically suggests what is in the cryptogram, and/or that it is pertinent, then you could very well end up in jail indefinitely for contempt of court. In this instance, I strongly suspect that my simplification is justified because in the San Bernardino case and the myriad others that are on the FBI's short list, they are fishing in order to gain a general precedent that they do not currently have. They want to be able to compel you to release a password even when they don't have any evidence suggesting what is in the cryptogram, arguments for why it is pertinent, etc.
- tptacek 11y agoI personally think people should prepare themselves for a future in which compelled production of passwords (or, at least, compelled unlocking of devices and documents) is the norm. The 5A argument about crypto seems really flimsy, and allowing compelled unlocking seems constitutionally more straightforward than a ban on strong cryptography.
- hamburglar 11y agoDoesn't this simply lead to the development of better deniable encryption products?
- tptacek 11y agoThere is less organic pressure for deniable encryption than there is for end-to-end encryption, because the latter is helpful for general-purpose security, and the former is not.
- hamburglar 11y agoI dunno, it's a weak argument, but bad guys can't put effort into attacking that which they don't know exists either.
- Zigurd 11y agoEven if a court could order you to produce a key for a cryptogram on paper, there are practical limits, like providing evidence the key continues to exist. Warrants are powerless against deniability, whether that's about electronic data, cryptograms, or any plausibly unknowable information. Deniability regularly stymies legal cases, but it is a fact of existence, and nobody is begging "the experts" to come up with a fix.
- tptacek 11y agoThat's true, but I think it misreads the law enforcement concern about crypto. The issue isn't that it's possible to deniably and unbreakably encrypt things. The issue is that unbreakable crypto is becoming the default, and that we can clearly see a future in which no phone call, document, hard drive or device will be available to an adversarial court proceeding. It is much less likely that deniable encryption will be the default any time soon.
- cortesoft 11y agoI won't comment on the legal aspect, but there is the practical aspect as well - how would it ever be possible to distinguish someone refusing to produce the password vs someone forgetting the password? Everyone forgets passwords to things all the time. We can't make forgetting your password a crime.
- tptacek 11y agoTo a first approximation nobody is walking around with a phone that has received a call or sent a text message within the last N weeks that they themselves are incapable of unlocking.
- icebraining 11y agoNot by the SCOTUS, but the Eleventh Circuit wrote in 2012 that forcing a suspect to decrypt his hard-drive would violate the Fifth: http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-amendment-right-against-self-incrimination-not-to-decrypt-encyrpted-computer/ http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-am...