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"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something

"no one has any duty to provide the police with evidence as a 5th amendment protection" I like that idea. However, the 5th amendment's protection is something different: "No person shall be compelled in any criminal case to be a witness against himself." Consider the case of someone running a drug lab or counterfeiting press in their residence. Police show up with a warrant based on probable cause to search the residence. The person is required to unlock the door and let the police in because the police have a warrant. The person is not testifying against themselves, they are unlocking the lock to allow a warranted search. If they do not unlock the door after being presented with a warrant then that is a new crime they can be charged with, and the police will come in anyway. In these cases with encryption the courts have consistently been finding that the password is comparable to unlocking the door to a house to which the police have a search warrant. It has also been counterargued that speaking or writing down a password is a form of testimony, one that can be self-incriminatory, and therefore is protected by the Fifth. Most courts have not been sympathetic to this argument, though there has been one exception. In this case the man is in possession of a lawful order from a judge to facilitate a search and he is refusing to cooperate. Thus the judge jails him until he decides to cooperate with the lawful order from the judge. This is how it is done.

baobrain 10y ago
> In these cases with encryption the courts have consistently been finding that the password is comparable to unlocking the door to a house to which the police have a search warrant. I thought it was the exact opposite, where things such as a lock combination or a memorized password could not be compelled, whereas things like a fingerprint or a key can be since they are physical possessions. _DISCLAIMER_ (IANAL and above is IIRC) Edit: clicked some links in the article [0] https://supreme.justia.com/cases/federal/us/530/27/case.html https://supreme.justia.com/cases/federal/us/530/27/case.html [1]https://www.wired.com/2012/02/laptop-decryption-appeal-rejected/ https://www.wired.com/2012/02/laptop-decryption-appeal-rejec... So it's a mixed bag. [1] was never enforced because authorities got the password from elsewhere.
- droithomme 10y ago
  This case has typical arguments compelling disclosure and dismissing the arguments against. BTW, I don't agree with this stuff, I'm just summarizing how courts for the most part are presently handling these cases. http://scholar.google.com/scholar_case?q=GELFGATT&hl=en&as_sdt=2006&case=13313310379620456644&scilh=0 http://scholar.google.com/scholar_case?q=GELFGATT&hl=en&as_s...
jakeogh 10y ago
Now extend that thought line to embedded brain chips. I don't like where it goes.
- babuskov 10y ago
  My thoughts exactly. I really don't understand why would you get down-voted. If there were brain chips, one could easily see the analogy and drawing a line would be much harder.
- jacquesm 10y ago
  Well, they could be un-embedded and read out the hard way. (Might still be encrypted after that, but the data is going to be made accessible one way or another unless the device self destructs and you won't be storing the key in there but in your wetware.)
  - jakeogh 10y ago
    Compulsive surgery before a conviction? Even worse.
    - jacquesm 10y ago
      You're doing this to yourself, all you have to do is give us a key... and think about the risks of such an operation. /s
      - jwatte 10y ago
        Just stop claiming innocence and sign this confession and everything will be so much easier!
beezle 10y ago
A few points - Devils advocate, travel back to the 1950s. The government searches your home and takes a letter or other document that is clearly written in code. Can/would they jail you as in the current case until you decode it? And without even charging you with any other crime first? At what point is "I used a one time pad" or "I don'remember" sufficient? I'm sure all of us have at least once (probably many) times forgotten a password, even for something relatively important. The 'lock' interpretation also fails. It is obfuscation, they have executed their search warrant and they possess the obfuscated data. Can they force you to translate your documents written in some obscure language because they can find nobody else willing to do so for them? Re: Orin Kerr - his argument fails as the government can execute their own search warrant to take documents they believe you to have - they need not rely upon you to voluntarily provide them at their request.
- ethbro 10y ago
  Following from this, if perfect encryption leaves a ciphertext indistinguishable from random noise, then what proof does the court expect that a given decryption is the correct decryption? If he were to hand them an elaborately constructed fake file system, who would they be to say those weren't the encrypted contents? (For purposes of thought exercise, mooting arguments about headers / magic fingerprints / leaky metadata)
  - gervase 10y ago
    A possibly-related topic: https://en.wikipedia.org/wiki/Deniable_encryption https://en.wikipedia.org/wiki/Deniable_encryption How can they even be sure that the decrypted message is the real one? I assume currently they're just using human heuristics (i.e. I know it when I see it) to tell if the decrypted data is actually valid?
  - Paul-ish 10y ago
    TrueCrypt let you encrypt your drive in a "plausibly deniable" way. One password would let you see the encrypted contents as would expect, but there was also a sort of duress password. If you mounted the drive with the second password, you would not see files added with the "true" password. You could even add files to this file system so it looked like a fully functioning file system. How would the authorities know you have given them the correct password? I'm not sure how effective it was, I remember there being some criticism of it.
mnm1 10y ago
The difference is, one doesn't have to cooperate with a search warrant. The idea of encryption being a lock like on a locked door is ludicrous and downright dangerous. Using a fantasy metaphor in place of actual reality is incredibly misleading and outright manipulative. The difference between a lock and encryption is that all locks in the physical world can be broken by outside parties. If someone doesn't want to open the door for a search warrant, the cops can bust it down. That can't be done with encryption. The only metaphorical equivalent to breaking encryption would be to brute force it which, given proper encryption, is unlikely to succeed. So now we have an innocent person being held indefinitely based on some metaphor the courts decide must hold up in the real world that has no real world basis in reality. Instead of the courts logically following up their own thinking, they now expect the defendant to do the police and prosecutor's work. If it's a lock, the police/prosecutor should break it after obtaining a warrant. It's not the defendant's job to testify and give them the information they need to break it. If they are incapable of carrying out their job, why should the innocent defendant be compelled to do it for them? Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics?
- cookiecaper 10y ago
  It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation to cooperate with lawful orders. The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. This has been expanded to preclude other types of unreliable confessions. Impeding the execution of a legitimate warrant, even when that warrant is issued in order to obtain evidence to prosecute oneself, is not protected by the Fifth Amendment. The Fifth is not there to allow criminals to get away with things, antagonize the police, or make it hard for society to maintain order. It's not there because keeping "one innocent person out of jail is worth 50 guilty going free" or similar sentiments that are frequently expressed. It's there to prevent a common corruption in the justice process. >Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics? Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so. Reformation of the contempt of court power is probably reasonable, however. This guy should be charged with obstructing justice and tried instead of kept in prison indefinitely. It'd probably be good to set an upper limit of something like 12 months on contempt of court detainments. I'm not a lawyer.
jliptzin 10y ago
And what happens if he actually forgot the password? Then what?
- jessaustin 10y ago
  Surely, indefinite detention is an appropriate punishment for forgetfulness?
imh 10y ago
I have a technical question about this comparison. In the locked door example, is the warrant an allowance for police to enter the area without the owner's permission, or is the warrant an order for the owner to give permission and assist?
- nikdaheratik 10y ago
  If you're home, you have to let them in. If not, they are allowed to break in.
  - imh 10y ago
    So if they come to John Doe's house with a warrant and he just sits passively on his couch while they legally enter, he has broken the law? This page[0] (ctrl+f "You do not have to assist law enforcement when they are conducting their search.") seems to suggest that a warrant does not require you to assist them, though I don't understand the scope of that; whether it's assisting them in executing the warrant or what. [0] https://www.eff.org/issues/know-your-rights https://www.eff.org/issues/know-your-rights
  - brw12 10y ago
    > If you're home, you have to let them in. If not, they are allowed to break in. Right, but is it really a crime not to unlock the door?
battlebot 10y ago
Supplying passwords is being a witness against yourself.
iopq 10y ago
> In these cases with encryption the courts have consistently been finding that the password is comparable to unlocking the door to a house to which the police have a search warrant. What proof do they have that he has the password to the harddrive?
derekp7 10y ago
Now consider, what if the police find nothing after executing the search warrant? "Hey, we know you have a counterfeit press somewhere -- give us the address where it is located".
Natanael_L 10y ago
Giving them the harddrive is like opening the door. Not my problem they can't read the documents they found.
MertsA 10y ago
>The person is required to unlock the door and let the police in because the police have a warrant. Is this true? The person is required to not do anything to hinder police but is the subject of a warrant ordered to assist them with the search? IMHO the difference between a key and a combination to a safe, which is the whole premiss behind being compelled to produce a decryption key being a violation of the 5th amendment, would seem to be at ends to that interpretation. Obviously if the door is unlocked when the warrant is served then the subject can't lock the police out but if there's an interior door that's locked, can the subject be compelled to provide the combination to unlock it? That's no different than being compelled to provide the combination to a safe so that would imply that the subject of a search warrant doesn't have to assist the police, just not actively impede the execution of the warrant.

baobrain 10y ago

> In these cases with encryption the courts have consistently been finding that the password is comparable to unlocking the door to a house to which the police have a search warrant. I thought it was the exact opposite, where things such as a lock combination or a memorized password could not be compelled, whereas things like a fingerprint or a key can be since they are physical possessions. _DISCLAIMER_ (IANAL and above is IIRC) Edit: clicked some links in the article [0] https://supreme.justia.com/cases/federal/us/530/27/case.html https://supreme.justia.com/cases/federal/us/530/27/case.html [1]https://www.wired.com/2012/02/laptop-decryption-appeal-rejected/ https://www.wired.com/2012/02/laptop-decryption-appeal-rejec... So it's a mixed bag. [1] was never enforced because authorities got the password from elsewhere.

droithomme 10y ago
This case has typical arguments compelling disclosure and dismissing the arguments against. BTW, I don't agree with this stuff, I'm just summarizing how courts for the most part are presently handling these cases. http://scholar.google.com/scholar_case?q=GELFGATT&hl=en&as_sdt=2006&case=13313310379620456644&scilh=0 http://scholar.google.com/scholar_case?q=GELFGATT&hl=en&as_s...

jakeogh 10y ago

Now extend that thought line to embedded brain chips. I don't like where it goes.

babuskov 10y ago
My thoughts exactly. I really don't understand why would you get down-voted. If there were brain chips, one could easily see the analogy and drawing a line would be much harder.
jacquesm 10y ago
Well, they could be un-embedded and read out the hard way. (Might still be encrypted after that, but the data is going to be made accessible one way or another unless the device self destructs and you won't be storing the key in there but in your wetware.)
- jakeogh 10y ago
  Compulsive surgery before a conviction? Even worse.
  - jacquesm 10y ago
    You're doing this to yourself, all you have to do is give us a key... and think about the risks of such an operation. /s
    - jwatte 10y ago
      Just stop claiming innocence and sign this confession and everything will be so much easier!

beezle 10y ago

A few points - Devils advocate, travel back to the 1950s. The government searches your home and takes a letter or other document that is clearly written in code. Can/would they jail you as in the current case until you decode it? And without even charging you with any other crime first? At what point is "I used a one time pad" or "I don'remember" sufficient? I'm sure all of us have at least once (probably many) times forgotten a password, even for something relatively important. The 'lock' interpretation also fails. It is obfuscation, they have executed their search warrant and they possess the obfuscated data. Can they force you to translate your documents written in some obscure language because they can find nobody else willing to do so for them? Re: Orin Kerr - his argument fails as the government can execute their own search warrant to take documents they believe you to have - they need not rely upon you to voluntarily provide them at their request.

ethbro 10y ago
Following from this, if perfect encryption leaves a ciphertext indistinguishable from random noise, then what proof does the court expect that a given decryption is the correct decryption? If he were to hand them an elaborately constructed fake file system, who would they be to say those weren't the encrypted contents? (For purposes of thought exercise, mooting arguments about headers / magic fingerprints / leaky metadata)
- gervase 10y ago
  A possibly-related topic: https://en.wikipedia.org/wiki/Deniable_encryption https://en.wikipedia.org/wiki/Deniable_encryption How can they even be sure that the decrypted message is the real one? I assume currently they're just using human heuristics (i.e. I know it when I see it) to tell if the decrypted data is actually valid?
- Paul-ish 10y ago
  TrueCrypt let you encrypt your drive in a "plausibly deniable" way. One password would let you see the encrypted contents as would expect, but there was also a sort of duress password. If you mounted the drive with the second password, you would not see files added with the "true" password. You could even add files to this file system so it looked like a fully functioning file system. How would the authorities know you have given them the correct password? I'm not sure how effective it was, I remember there being some criticism of it.

mnm1 10y ago

The difference is, one doesn't have to cooperate with a search warrant. The idea of encryption being a lock like on a locked door is ludicrous and downright dangerous. Using a fantasy metaphor in place of actual reality is incredibly misleading and outright manipulative. The difference between a lock and encryption is that all locks in the physical world can be broken by outside parties. If someone doesn't want to open the door for a search warrant, the cops can bust it down. That can't be done with encryption. The only metaphorical equivalent to breaking encryption would be to brute force it which, given proper encryption, is unlikely to succeed. So now we have an innocent person being held indefinitely based on some metaphor the courts decide must hold up in the real world that has no real world basis in reality. Instead of the courts logically following up their own thinking, they now expect the defendant to do the police and prosecutor's work. If it's a lock, the police/prosecutor should break it after obtaining a warrant. It's not the defendant's job to testify and give them the information they need to break it. If they are incapable of carrying out their job, why should the innocent defendant be compelled to do it for them? Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics?

cookiecaper 10y ago
It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation to cooperate with lawful orders. The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. This has been expanded to preclude other types of unreliable confessions. Impeding the execution of a legitimate warrant, even when that warrant is issued in order to obtain evidence to prosecute oneself, is not protected by the Fifth Amendment. The Fifth is not there to allow criminals to get away with things, antagonize the police, or make it hard for society to maintain order. It's not there because keeping "one innocent person out of jail is worth 50 guilty going free" or similar sentiments that are frequently expressed. It's there to prevent a common corruption in the justice process. >Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics? Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so. Reformation of the contempt of court power is probably reasonable, however. This guy should be charged with obstructing justice and tried instead of kept in prison indefinitely. It'd probably be good to set an upper limit of something like 12 months on contempt of court detainments. I'm not a lawyer.

jliptzin 10y ago

And what happens if he actually forgot the password? Then what?

jessaustin 10y ago
Surely, indefinite detention is an appropriate punishment for forgetfulness?

imh 10y ago

I have a technical question about this comparison. In the locked door example, is the warrant an allowance for police to enter the area without the owner's permission, or is the warrant an order for the owner to give permission and assist?

nikdaheratik 10y ago
If you're home, you have to let them in. If not, they are allowed to break in.
- imh 10y ago
  So if they come to John Doe's house with a warrant and he just sits passively on his couch while they legally enter, he has broken the law? This page[0] (ctrl+f "You do not have to assist law enforcement when they are conducting their search.") seems to suggest that a warrant does not require you to assist them, though I don't understand the scope of that; whether it's assisting them in executing the warrant or what. [0] https://www.eff.org/issues/know-your-rights https://www.eff.org/issues/know-your-rights
- brw12 10y ago
  > If you're home, you have to let them in. If not, they are allowed to break in. Right, but is it really a crime not to unlock the door?

battlebot 10y ago

Supplying passwords is being a witness against yourself.

iopq 10y ago

derekp7 10y ago

Now consider, what if the police find nothing after executing the search warrant? "Hey, we know you have a counterfeit press somewhere -- give us the address where it is located".

Natanael_L 10y ago

Giving them the harddrive is like opening the door. Not my problem they can't read the documents they found.

MertsA 10y ago

>The person is required to unlock the door and let the police in because the police have a warrant. Is this true? The person is required to not do anything to hinder police but is the subject of a warrant ordered to assist them with the search? IMHO the difference between a key and a combination to a safe, which is the whole premiss behind being compelled to produce a decryption key being a violation of the 5th amendment, would seem to be at ends to that interpretation. Obviously if the door is unlocked when the warrant is served then the subject can't lock the police out but if there's an interior door that's locked, can the subject be compelled to provide the combination to unlock it? That's no different than being compelled to provide the combination to a safe so that would imply that the subject of a search warrant doesn't have to assist the police, just not actively impede the execution of the warrant.