5 ms·
The government doesn't have a case with that evidence alone, that's why they are trying to compel the defendant to decrypt the hard drive. Here is how that's an
by luso_brazilian 10y ago
The government doesn't have a case with that evidence alone, that's why they are trying to compel the defendant to decrypt the hard drive. Here is how that's an end run around the 5th amendment:
> State: you are under arrest on suspicious of possession of child pornography. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he has it in that computer
> State: now reveal the password
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal the password
Here is how that could play differently in the future:
> State: you are under arrest on suspicious of murder. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he did to the victim
> State: now reveal the whereabouts of the body
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal it
If the All Writs Act allows the government to do the first it also allow the government to do the second.
- wfo 10y agoThat's not really the issue that concerns me. If the state can prove beyond a reasonable doubt that he is capable of complying with the warrant (but is choosing not to) then contempt and jail is wholly appropriate. Similarly, if the state could prove he knew where the body was beyond a reasonable doubt then that's enough to lock him up, sure, absolutely, 100%. Even if he didn't do it, concealing facts about it when subpoenad or served with a warrant etc is certainly illegal. But the difference here is, can the state prove the drives are encrypted? Probably. I'd assume that's the case (forensic examination could reveal file names, logs, etc that provide evidence of that volume having been decrypted, the vast majority of encryption systems are readily identifiable) Can the state prove he is capable and unwilling, rather than willing but incapable, of decrypting the drives? I don't think that could ever happen. What if he genuinely forgot the password? What if he never knew it (was storing them for someone else, a common lie/excuse to give to police but something that could be true, any number of other reasons)? Does every person have to be able to provide access to all encrypted data on their devices if served with a warrant, with the consequences of being unable to do so indefinite imprisonment? Is forgetting or losing a password in unlucky combination with an false accusation of wrongdoing grounds for a life sentence?
- zorked 10y agoWe know that at some point someone that has a shred(1)ed disk will be told to "decrypt" it or face indefinite detention...
- maxerickson 10y agoI wonder if it then makes sense to write 0s as part of a permanent deletion process. No ambiguity about remaining content or intent when you do that.
- mjevans 10y agoI frequently, but DO NOT ALWAYS, do this when I am erasing hard drives. When I do this it is more of a flag to remind my self that I have, in fact, finished scrubbing the device.
- DanBC 10y agoUsing pseudorandom data is pointless. If overwriting with 0s isn't enough you should be physically shredding the drives.
- dTal 10y agoQuite the reverse - you should always overwrite with random data so you have plausible deniability.
- philovivero 10y agoI'm not in the legal profession, but I don't see those two as equivalent at all. Are you sure those are legally equivalent? The first case allows police to make a search they couldn't make before. The second is... I don't even know what. I would expect if you wanted them to be equivalent, you'd make the second more like: "We know you hid the body in your yard. Unlock your gate so we can enter and find it."
- smaddox 10y agoHow is an encryption key different from any other piece of information that could be used to intimate you? It's not a physical object that can be searched.
- pyrophane 10y agoThe key difference between the two is what is revealed by the disclosure that they are trying to compel. In the case of the hard drives, providing the decryption key establishes only that the drives belong to him or that he at least has access to the information they contain. In the second case showing the police where a body is located is in itself strong evidence that he was involved in the crime.
- oarsinsync 10y agoHaving access to information contained on disks that is considered illegal to access is strong evidence that he was involved in the crime.