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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 l

by jordanb 11y 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 11y 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 11y 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 11y 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.
  - upofadown 11y ago
    >Your version is like saying, without the combination of the safe, the papers inside don't exist in any readable form. That's just restating your analogy again without addressing my contention about random seeming data.
  - derefr 11y ago
    There is no fact of the matter, for the recoverability of what someone believes to be encrypted files. The state has one subjective belief—that the files are real, but encrypted. You might have a different belief—e.g. that the files never existed, and your disk contains random data with a disk-encryption header prepended. The concern is that you can be held in contempt for what the government believes to be true—that real data is there, under encryption, which you are not revealing—without that necessarily having any connection to reality. By analogy: the government can compel me to open a safe, but it shouldn't be able to compel me to open something that—for all examinable intents and purposes—is a block of concrete with the facade of a safe door attached. I could certainly be held in contempt for refusing to open something that has been proved to be a safe; but holding me in contempt for refusing to open a concrete block, because they believe I have some magic power to turn it into a safe, is Kafkaesque.
Veratyr 11y ago
> 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. This situation has actually come up before and it was ruled that while a person can be compelled to unlock a box with a physical key, a person cannot be compelled to provide the combination to a safe. [0] goes into a lot of depth on this. [0] http://www.uclalawreview.org/the-fifth-amendment-encryption-and-the-forgotten-state-interest/ http://www.uclalawreview.org/the-fifth-amendment-encryption-...
- derefr 11y ago
  A stronger analogy, falling between the two scenarios, would be: presuming the original key for a lock has been destroyed, but you have memorized the particular key-cutting metrics that would be required to produce a working duplicate, could you be compelled to reveal those metrics so such a key could be created?
Lawtonfogle 11y ago
Some forms of encryption allow for keys that create evidence that has never existed before. A simple case is an XOR between random data and some illegal file (that only hypothetically exists). That XOR is a key to creating the illegal file which never existed before. You cannot draw an analogy to any real world item locked up in some way, because in those cases a key could only ever reveal an item that already exists.

by jordanb 11y ago

gozur88 11y 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 11y 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 11y 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.
- upofadown 11y ago
  >Your version is like saying, without the combination of the safe, the papers inside don't exist in any readable form. That's just restating your analogy again without addressing my contention about random seeming data.
- derefr 11y ago
  There is no fact of the matter, for the recoverability of what someone believes to be encrypted files. The state has one subjective belief—that the files are real, but encrypted. You might have a different belief—e.g. that the files never existed, and your disk contains random data with a disk-encryption header prepended. The concern is that you can be held in contempt for what the government believes to be true—that real data is there, under encryption, which you are not revealing—without that necessarily having any connection to reality. By analogy: the government can compel me to open a safe, but it shouldn't be able to compel me to open something that—for all examinable intents and purposes—is a block of concrete with the facade of a safe door attached. I could certainly be held in contempt for refusing to open something that has been proved to be a safe; but holding me in contempt for refusing to open a concrete block, because they believe I have some magic power to turn it into a safe, is Kafkaesque.

Veratyr 11y ago

> 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. This situation has actually come up before and it was ruled that while a person can be compelled to unlock a box with a physical key, a person cannot be compelled to provide the combination to a safe. [0] goes into a lot of depth on this. [0] http://www.uclalawreview.org/the-fifth-amendment-encryption-and-the-forgotten-state-interest/ http://www.uclalawreview.org/the-fifth-amendment-encryption-...

derefr 11y ago
A stronger analogy, falling between the two scenarios, would be: presuming the original key for a lock has been destroyed, but you have memorized the particular key-cutting metrics that would be required to produce a working duplicate, could you be compelled to reveal those metrics so such a key could be created?

Lawtonfogle 11y ago

Some forms of encryption allow for keys that create evidence that has never existed before. A simple case is an XOR between random data and some illegal file (that only hypothetically exists). That XOR is a key to creating the illegal file which never existed before. You cannot draw an analogy to any real world item locked up in some way, because in those cases a key could only ever reveal an item that already exists.