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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 dan
by 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 agoIt'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.
- tansey 10y agoExcept it seems there is good case law to show that in fact suspected cannot be forced to open a combination lock, as it falls under fifth amendment protection. They can, however, be compelled to provide a key if it is a key-based lock. This applies similarly to biometric-based locks. It's hard to believe that an encryption key is any different than a combination lock in this "encryption is like a safe" metaphor. Relevant cases: https://supreme.justia.com/cases/federal/us/425/391/case.html https://supreme.justia.com/cases/federal/us/425/391/case.htm... https://supreme.justia.com/cases/federal/us/487/201/ https://supreme.justia.com/cases/federal/us/487/201/ https://supreme.justia.com/cases/federal/us/530/27/case.html https://supreme.justia.com/cases/federal/us/530/27/case.html
- kakarot 10y agoGosh, compelled is such a nice euphemism for "psychologically and physically brutalized until complicit". I don't think it is right to "compel" you to produce anything, key nor combination.
- cookiecaper 10y agoI mean, yes, the thing that ultimately underpins all authority is the ability to exert physical force to see it honored. I'm not clear on what you're suggesting.
- diyorgasms 10y agoI think it's pretty clear that the parent is accusing the state of using torture to coerce compliance, which is a strong indication that the state itself is no longer legitimate.
- iopq 10y agoThe state cannot exist without violence to back it up. Why would anyone pay taxes if you couldn't be thrown in jail for non-compliance?
- ouid 10y agoI think this argument would be more compelling if instead, you pointed to the fact that they cannot prove that the hard drive contains anything at all. The problem of deciding whether or not the hard drive is encrypted is equivalent to decrypting the hard drive. It's like the police showing up with a warrant to enter a house that they cannot prove exists, or that I am the owner, and then holding me in contempt for failing to open it. What if your hard drive was encrypted maliciously and then taken into evidence? Is it even possible to prove that this isn't the case?