4 ms·

Let this possibly be a lesson. Use encryption. If you're on a mac, go, right now, and tick the FileVault checkbox. Windows users go download TrueCrypt and tu

Let this possibly be a lesson. Use encryption. If you're on a mac, go, right now, and tick the FileVault checkbox. Windows users go download TrueCrypt and turn on whole-disc encryption. The law in this country is so complicated that, increasingly, it doesn't matter if you've broken the law or not. I don't side with Gawker. But I do know that if you have years of browsing history lying around, surely there's something somebody can pin on you if they want to. Seriously. Go tick the checkbox.

philwelch 17y ago
Alternatively, don't buy stolen property and then publicly announce that you've done so. Once you've committed a crime though, definitely be smart about asserting your civil rights, using encryption, etc. And even if you haven't committed a crime, assert your civil rights and use encryption. But probably the #1 thing you can do to not get harassed by police is to obey the law.
- jrockway 17y ago
  Unfortunately, everyone is guilty of violating some law at some time. So it's best to ensure that your computer is not going to be testifying against you, especially when that is just one checkbox away. You can always decrypt your drive when asked. But you can't encrypt it after the police take your computer.
slackerIII 17y ago
What is your plan for when the judge tells you to supply the decryption key?
- donw 17y ago
  You supply it, of course. But having the drive encrypted buys you time. The cops have to take the machines into evidence, nominally send them out to the lab for processing, and only then do they run into your encryption key. They then need to go back to the judge, and get a court order to compel you to supply your encryption key. By which time you've gotten a lawyer, and can fight back.
- iamjustlooking 17y ago
  Does the 5th amendment not apply in this situation?
  - slackerIII 17y ago
    Hm, you are probably right - I'm used to thinking about things from a civil suit perspective. http://volokh.com/posts/1197670606.shtml http://volokh.com/posts/1197670606.shtml
  - evgen 17y ago
    Still undetermined at the federal level. Are the contents of your computer evidence (like papers in a safe) or testimony. Most precedent points to the former, and if the Boucher case actually gets appealed to the circuit level (or even the supremes) then the odds are strongly against it being protected by the 5th.
- drewcrawford 17y ago
  Truecrypt supports plausible deniability: http://www.truecrypt.org/docs/?s=plausible-deniability http://www.truecrypt.org/docs/?s=plausible-deniability I don't do anything remotely heinous enough to warrant a court order to reveal my encryption key, however.
  - anigbrowl 17y ago
    A possible plausible explanation for the existence of a partition/device containing solely random data is that you have wiped (securely erased) the content of the partition/device using one of the tools that erase data by overwriting it with random data (...) Um...that kid in Tennessee that accessed Sarah Palin's email did a secure erase, but enough of his activity was revealed by some malware on his machine, as well as ISP records etc., that he also got charged with obstruction of justice for having deleted stuff germane to the crime of unauthorized access. Just sayin'.
ajg1977 17y ago
You may want to read up on U.S. v Boucher, 2009. Unless you're hiding evidence of something particularly heinous, refusing to provide a means of decryption may land you in more trouble than the crime of which you're suspected.
- jrockway 17y ago
  This is a little different. The laptop was searched while unencrypted, and child porn was found. Only then did Boucher refuse to provide the key. This was also a customs case; where the courts have routinely held that your Constitutional protection against searches does not apply. (The courts are wrong, of course, but this issue remains unsolved pending new legislation.) Either way, the Constitution is clear on this issue: "no person ... shall be compelled in any criminal case to be a witness against himself". If a safe is found in your house, the government can do whatever they want to open it. They can blow it up, or they can ask your friends for the combination, or even just try every combination. But they can't punish you for not giving them the combination. Cryptography is a very strong safe. (A quick reading of related cases leads me to believe that this one is more relevant: http://supreme.justia.com/us/487/201/case.html http://supreme.justia.com/us/487/201/case.html. It holds that "In order to be "testimonial," an accused's oral or written communication, or act, must itself, explicitly or implicitly, relate a factual assertion or disclose information." Since reveling the decryption key is a factual assertion and discloses information, it is protected. Note that in Boucher, it is not clear that the key would disclose information. But honestly, I think my Google skills are just better than the Appeals court in that case. I doubt that the decision would hold up in the Supreme court. And I especially doubt that one could be compelled to give up his or her key in normal, non-customs, criminal proceedings. IANAL.)
  - evgen 17y ago
    But they can't punish you for not giving them the combination. Yes, they can. If the judge has reasonable grounds to believe that you are withholding evidence or the knowledge necessary for law enforcement to collect this evidence then the judge can hold you in contempt of court and place you in jail until you agree to provide the information. While there have been a couple of aberrations in the general flow of case law to a standard consensus on the matter, the general consensus (at least at the federal level) is that being compelled to provide an encryption key is not covered by the 5th amendment's protection against self-incrimination.

philwelch 17y ago

Alternatively, don't buy stolen property and then publicly announce that you've done so. Once you've committed a crime though, definitely be smart about asserting your civil rights, using encryption, etc. And even if you haven't committed a crime, assert your civil rights and use encryption. But probably the #1 thing you can do to not get harassed by police is to obey the law.

jrockway 17y ago
Unfortunately, everyone is guilty of violating some law at some time. So it's best to ensure that your computer is not going to be testifying against you, especially when that is just one checkbox away. You can always decrypt your drive when asked. But you can't encrypt it after the police take your computer.

slackerIII 17y ago

What is your plan for when the judge tells you to supply the decryption key?

donw 17y ago
You supply it, of course. But having the drive encrypted buys you time. The cops have to take the machines into evidence, nominally send them out to the lab for processing, and only then do they run into your encryption key. They then need to go back to the judge, and get a court order to compel you to supply your encryption key. By which time you've gotten a lawyer, and can fight back.
iamjustlooking 17y ago
Does the 5th amendment not apply in this situation?
- slackerIII 17y ago
  Hm, you are probably right - I'm used to thinking about things from a civil suit perspective. http://volokh.com/posts/1197670606.shtml http://volokh.com/posts/1197670606.shtml
- evgen 17y ago
  Still undetermined at the federal level. Are the contents of your computer evidence (like papers in a safe) or testimony. Most precedent points to the former, and if the Boucher case actually gets appealed to the circuit level (or even the supremes) then the odds are strongly against it being protected by the 5th.
drewcrawford 17y ago
Truecrypt supports plausible deniability: http://www.truecrypt.org/docs/?s=plausible-deniability http://www.truecrypt.org/docs/?s=plausible-deniability I don't do anything remotely heinous enough to warrant a court order to reveal my encryption key, however.
- anigbrowl 17y ago
  A possible plausible explanation for the existence of a partition/device containing solely random data is that you have wiped (securely erased) the content of the partition/device using one of the tools that erase data by overwriting it with random data (...) Um...that kid in Tennessee that accessed Sarah Palin's email did a secure erase, but enough of his activity was revealed by some malware on his machine, as well as ISP records etc., that he also got charged with obstruction of justice for having deleted stuff germane to the crime of unauthorized access. Just sayin'.

ajg1977 17y ago

You may want to read up on U.S. v Boucher, 2009. Unless you're hiding evidence of something particularly heinous, refusing to provide a means of decryption may land you in more trouble than the crime of which you're suspected.

jrockway 17y ago
This is a little different. The laptop was searched while unencrypted, and child porn was found. Only then did Boucher refuse to provide the key. This was also a customs case; where the courts have routinely held that your Constitutional protection against searches does not apply. (The courts are wrong, of course, but this issue remains unsolved pending new legislation.) Either way, the Constitution is clear on this issue: "no person ... shall be compelled in any criminal case to be a witness against himself". If a safe is found in your house, the government can do whatever they want to open it. They can blow it up, or they can ask your friends for the combination, or even just try every combination. But they can't punish you for not giving them the combination. Cryptography is a very strong safe. (A quick reading of related cases leads me to believe that this one is more relevant: http://supreme.justia.com/us/487/201/case.html http://supreme.justia.com/us/487/201/case.html. It holds that "In order to be "testimonial," an accused's oral or written communication, or act, must itself, explicitly or implicitly, relate a factual assertion or disclose information." Since reveling the decryption key is a factual assertion and discloses information, it is protected. Note that in Boucher, it is not clear that the key would disclose information. But honestly, I think my Google skills are just better than the Appeals court in that case. I doubt that the decision would hold up in the Supreme court. And I especially doubt that one could be compelled to give up his or her key in normal, non-customs, criminal proceedings. IANAL.)
- evgen 17y ago
  But they can't punish you for not giving them the combination. Yes, they can. If the judge has reasonable grounds to believe that you are withholding evidence or the knowledge necessary for law enforcement to collect this evidence then the judge can hold you in contempt of court and place you in jail until you agree to provide the information. While there have been a couple of aberrations in the general flow of case law to a standard consensus on the matter, the general consensus (at least at the federal level) is that being compelled to provide an encryption key is not covered by the 5th amendment's protection against self-incrimination.