8 ms·

Suspect jailed indefinitely for refusing to decrypt hard drives

153 points by hvo 10y ago

esbranson 10y ago
Here are the court case identifiers and PACER dockets: USA v. APPLE MACPRO COMPUTER, et al. (E.D. Pa., case 2:15-mj-00850) http://www.plainsite.org/dockets/2nurkco28/pennsylvania-eastern-district-court/usa-v-apple-macpro-computer-apple-mac-mini-computer-apple-iphone-6-plus-cellular-telephone-weste/ http://www.plainsite.org/dockets/2nurkco28/pennsylvania-east... USA v. APPLE MACPRO COMPUTER, et al. (3d Cir., case 15-3537) ????
LeoNatan25 10y ago
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.
blubb-fish 10y ago
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.
tdkl 10y ago
Ah CP, the modern day witch hunt and where all the reason falls through.
joesmo 10y ago
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.
- Joof 10y ago
  I wonder if the EFF is bold enough / has the resources to help. Encryption really should fall under the fifth. In this case he isn't charged with anything, so I'm not sure the fifth applies? I want a lawyer friend lol.
  - joesmo 10y ago
    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).
  - maxerickson 10y ago
    The article mentions that the EFF is involved. http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicus.pdf http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicu...
  - mjevans 10y ago
    If he's not charged with anything, then why do they need to know what's on his encrypted drives (which he may or may not be able to access anyway).
    - peeters 10y ago
      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.
noonespecial 10y ago
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.
- pbiggar 10y ago
  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.
  - physguy1123 10y ago
    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.
- fweespee_ch 10y ago
  Yep. I use encrypted drives for my financial information and other sensitive information I store on behalf of family (e.g. legal docs), etc. I wouldn't have a desire to reveal that either.
  - sandworm101 10y ago
    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.
derptron 10y ago
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?
peeters 10y ago
> 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. 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-much-fifth-amendment-man-jailed-seven-months-not-turning-over-password.shtml 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-All-Writs.pdf 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.
Joof 10y ago
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.
- Paul_S 10y ago
  Not much different from any other way of planting evidence. It happens.
  - dkopi 10y ago
    This isn't just planting evidence of a crime. This is planting the crime itself (Possession of child porn).
    - Paul_S 10y ago
      I don't follow. How does it differ from planting drugs?
      - ikeboy 10y ago
        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.
        revelation 10y ago
        Also with drugs, there are no autonomous search dogs constantly rummaging through your stuff. For child porn, meanwhile, every major "cloud storage" is continuously monitoring your files in a manner similar to YouTubes "content id".
tn13 10y ago
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.
- oh_sigh 10y ago
  What laws are you talking about re sex trafficking?
  - tn13 10y ago
    http://reason.com/blog/2016/04/23/how-new-hampshire-plans-to-spike-its-sex http://reason.com/blog/2016/04/23/how-new-hampshire-plans-to...
- coldcode 10y ago
  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".
fuheuehjdhhh 10y ago
Utterly terrifying abortion of justice. 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.
infogulch 10y ago
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?
- maxerickson 10y ago
  Procedure and integrity. Which are in play in almost every aspect of law enforcement anyway. The thing to be concerned about here is the ever more complicated legal theories being tested against really old laws.
  - anon4 10y ago
    Procedure and integrity holding back law enforcement is like not being hungry holding back lions from eating a gazelle.
  - toolz 10y ago
    >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.
    - rhino369 10y ago
      Why bother framing you. They can just take you out back and shoot you.
      - umanwizard 10y ago
        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.
        10y ago
seibelj 10y ago
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.
qq66 10y ago
This means that forgetting one's passphrase could be a life-ending mistake.
- anotheryou 10y ago
  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.
- godgod 10y ago
  Bingo. 1984 is here.
esoteric_nonces 10y ago
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.
- philovivero 10y ago
  Best comment on this story thus far.
dkopi 10y ago
So if he ends up forgetting his password while in prison, he's facing a life sentence?
- tjohns 10y ago
  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.
  - cmdrfred 10y ago
    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?
  - mordocai 10y ago
    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.
    - dllthomas 10y ago
      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.
sandworm101 10y ago
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.
- afarrell 10y ago
  What should folks who are the victim or witness to a violent crime do?
  - sandworm101 10y ago
    Go talk to an attorney first.
  - relaytheurgency 10y ago
    Hire him.
    - sandworm101 10y ago
      Lol. I'm the wrong type of lawyer. I'd send you to a friend who deals with criminal matters on a daily basis.
  - deleted 10y ago
    [deleted]
- chinathrow 10y ago
  Yes. Do not talk to the police. http://youtu.be/6wXkI4t7nuc http://youtu.be/6wXkI4t7nuc Edit for the downvote. The video has 6mio views and is considered good advice.
jordanb 10y ago
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.
- gozur88 10y ago
  >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.
- upofadown 10y ago
  >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?
  - AnimalMuppet 10y ago
    > 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.
godgod 10y ago
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.
dudifordMann 10y ago
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. [1] http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf http://www.wired.com/images_blogs/threatlevel/2012/01/decryp... [2]https://en.wikipedia.org/wiki/In_re_Boucher https://en.wikipedia.org/wiki/In_re_Boucher
- dudifordMann 10y ago
  wow... the grammar... what on earth did i write...
deleted 10y ago
[deleted]
cmdrfred 10y ago
>"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?
- knodi123 10y ago
  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.
TazeTSchnitzel 10y ago
Appropriate the URL is .co.uk. Here in the UK, this is actually explicit law. If you refuse to decrypt, you can be chucked in jail.

153 points by hvo 10y ago

Here are the court case identifiers and PACER dockets: USA v. APPLE MACPRO COMPUTER, et al. (E.D. Pa., case 2:15-mj-00850) http://www.plainsite.org/dockets/2nurkco28/pennsylvania-eastern-district-court/usa-v-apple-macpro-computer-apple-mac-mini-computer-apple-iphone-6-plus-cellular-telephone-weste/ http://www.plainsite.org/dockets/2nurkco28/pennsylvania-east... USA v. APPLE MACPRO COMPUTER, et al. (3d Cir., case 15-3537) ????

LeoNatan25 10y ago

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.

blubb-fish 10y ago

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.

tdkl 10y ago

Ah CP, the modern day witch hunt and where all the reason falls through.

joesmo 10y ago

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.

Joof 10y ago
I wonder if the EFF is bold enough / has the resources to help. Encryption really should fall under the fifth. In this case he isn't charged with anything, so I'm not sure the fifth applies? I want a lawyer friend lol.
- joesmo 10y ago
  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).
- maxerickson 10y ago
  The article mentions that the EFF is involved. http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicus.pdf http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicu...
- mjevans 10y ago
  If he's not charged with anything, then why do they need to know what's on his encrypted drives (which he may or may not be able to access anyway).
  - peeters 10y ago
    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.

noonespecial 10y ago

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.

pbiggar 10y ago
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.
- physguy1123 10y ago
  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.
fweespee_ch 10y ago
Yep. I use encrypted drives for my financial information and other sensitive information I store on behalf of family (e.g. legal docs), etc. I wouldn't have a desire to reveal that either.
- sandworm101 10y ago
  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.

derptron 10y ago

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?

peeters 10y ago

> 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. 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-much-fifth-amendment-man-jailed-seven-months-not-turning-over-password.shtml 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-All-Writs.pdf 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.

Joof 10y ago

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.

Paul_S 10y ago
Not much different from any other way of planting evidence. It happens.
- dkopi 10y ago
  This isn't just planting evidence of a crime. This is planting the crime itself (Possession of child porn).
  - Paul_S 10y ago
    I don't follow. How does it differ from planting drugs?
    - ikeboy 10y ago
      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.
      - revelation 10y ago
        Also with drugs, there are no autonomous search dogs constantly rummaging through your stuff. For child porn, meanwhile, every major "cloud storage" is continuously monitoring your files in a manner similar to YouTubes "content id".

tn13 10y ago

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.

oh_sigh 10y ago
What laws are you talking about re sex trafficking?
- tn13 10y ago
  http://reason.com/blog/2016/04/23/how-new-hampshire-plans-to-spike-its-sex http://reason.com/blog/2016/04/23/how-new-hampshire-plans-to...
coldcode 10y ago
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".

fuheuehjdhhh 10y ago

Utterly terrifying abortion of justice. 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.

infogulch 10y ago

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?

maxerickson 10y ago
Procedure and integrity. Which are in play in almost every aspect of law enforcement anyway. The thing to be concerned about here is the ever more complicated legal theories being tested against really old laws.
- anon4 10y ago
  Procedure and integrity holding back law enforcement is like not being hungry holding back lions from eating a gazelle.
- toolz 10y ago
  >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.
  - rhino369 10y ago
    Why bother framing you. They can just take you out back and shoot you.
    - umanwizard 10y ago
      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.
      - 10y ago

seibelj 10y ago

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.

qq66 10y ago

This means that forgetting one's passphrase could be a life-ending mistake.

anotheryou 10y ago
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.
godgod 10y ago
Bingo. 1984 is here.

esoteric_nonces 10y ago

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.

philovivero 10y ago
Best comment on this story thus far.

dkopi 10y ago

So if he ends up forgetting his password while in prison, he's facing a life sentence?

tjohns 10y ago
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.
- cmdrfred 10y ago
  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?
- mordocai 10y ago
  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.
  - dllthomas 10y ago
    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.

sandworm101 10y ago

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.

afarrell 10y ago
What should folks who are the victim or witness to a violent crime do?
- sandworm101 10y ago
  Go talk to an attorney first.
- relaytheurgency 10y ago
  Hire him.
  - sandworm101 10y ago
    Lol. I'm the wrong type of lawyer. I'd send you to a friend who deals with criminal matters on a daily basis.
- deleted 10y ago
  [deleted]
chinathrow 10y ago
Yes. Do not talk to the police. http://youtu.be/6wXkI4t7nuc http://youtu.be/6wXkI4t7nuc Edit for the downvote. The video has 6mio views and is considered good advice.

jordanb 10y ago

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.

gozur88 10y ago
>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.
upofadown 10y ago
>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?
- AnimalMuppet 10y ago
  > 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.

godgod 10y ago

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.

dudifordMann 10y ago

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. [1] http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf http://www.wired.com/images_blogs/threatlevel/2012/01/decryp... [2]https://en.wikipedia.org/wiki/In_re_Boucher https://en.wikipedia.org/wiki/In_re_Boucher

dudifordMann 10y ago
wow... the grammar... what on earth did i write...

deleted 10y ago

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cmdrfred 10y ago

>"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?

knodi123 10y ago
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.

TazeTSchnitzel 10y ago

Appropriate the URL is .co.uk. Here in the UK, this is actually explicit law. If you refuse to decrypt, you can be chucked in jail.