5 ms·

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

by 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.
  - karzeem 17y ago
    There's a subtle distinction to be made here between providing the key and providing access. Courts have ruled that the Constitution permits the government to compel you to provide access to the relevant information (e.g. to open the safe). But you don't have to give the government the combination. Just open the safe for them, and you can keep the combination to yourself. Anyway, that doesn't really change the basic fact — if law enforcement has a warrant for information that's locked away, a defendant can be compelled to provide the information.
    - jrockway 17y ago
      Citation? (And I'm not asking to be snarky. I need more information before I decide to run for public office and change the law :)
      - karzeem 17y ago
        http://arstechnica.com/tech-policy/news/2009/03/court-self-incrimination-privilege-stops-with-passwords.ars http://arstechnica.com/tech-policy/news/2009/03/court-self-i... That page has a link to the District Court ruling in Boucher.
        jrockway 17y ago
        The sticking point for this one, though, is that customs already saw the child porn. After seeing that, they lost the key, and wants Boucher to provide them with one. That's a little different than "we think you might possibly have something on this computer", which is still untested. Also, they appealed. Considering child porn gets you more time than homicide these days, I would wait until the case if over before deciding that encrypting your hard drive is a waste. You can always decrypt, you can't always encrypt.
        Nelson69 17y ago
        I couldn't point you to a citation but you can google around, courts have compelled lockers to be opened, safes to be opened, and they've compelled people to decrypt things. The fifth amendment applies to words you say, not evidence. The "pass phrase" is access to the evidence, not testimony against yourself. It's a losing battle anyways, a judge demands you turn over the passphrase or unlock the data and throws you in jail until you do. You could attempt to take it to the supreme court or something, but you're in jail during that process. Likewise, you could try to give them the wrong key with truecrypt or something but that assumes that they are idiots. If you find yourself in court in this situation, you've already lost, you're almost certainly going to spend time in jail.

by ajg1977 17y ago

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.
- karzeem 17y ago
  There's a subtle distinction to be made here between providing the key and providing access. Courts have ruled that the Constitution permits the government to compel you to provide access to the relevant information (e.g. to open the safe). But you don't have to give the government the combination. Just open the safe for them, and you can keep the combination to yourself. Anyway, that doesn't really change the basic fact — if law enforcement has a warrant for information that's locked away, a defendant can be compelled to provide the information.
  - jrockway 17y ago
    Citation? (And I'm not asking to be snarky. I need more information before I decide to run for public office and change the law :)
    - karzeem 17y ago
      http://arstechnica.com/tech-policy/news/2009/03/court-self-incrimination-privilege-stops-with-passwords.ars http://arstechnica.com/tech-policy/news/2009/03/court-self-i... That page has a link to the District Court ruling in Boucher.
      - jrockway 17y ago
        The sticking point for this one, though, is that customs already saw the child porn. After seeing that, they lost the key, and wants Boucher to provide them with one. That's a little different than "we think you might possibly have something on this computer", which is still untested. Also, they appealed. Considering child porn gets you more time than homicide these days, I would wait until the case if over before deciding that encrypting your hard drive is a waste. You can always decrypt, you can't always encrypt.
        Nelson69 17y ago
        I couldn't point you to a citation but you can google around, courts have compelled lockers to be opened, safes to be opened, and they've compelled people to decrypt things. The fifth amendment applies to words you say, not evidence. The "pass phrase" is access to the evidence, not testimony against yourself. It's a losing battle anyways, a judge demands you turn over the passphrase or unlock the data and throws you in jail until you do. You could attempt to take it to the supreme court or something, but you're in jail during that process. Likewise, you could try to give them the wrong key with truecrypt or something but that assumes that they are idiots. If you find yourself in court in this situation, you've already lost, you're almost certainly going to spend time in jail.