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Here's a recording of the oral arguments for the US Court of Appeals, Third Circuit back in September: http://www2.ca3.uscourts.gov/oralargument/audio/15-3537US
by ahelwer 10y ago
Here's a recording of the oral arguments for the US Court of Appeals, Third Circuit back in September: http://www2.ca3.uscourts.gov/oralargument/audio/15-3537USAv.AppleMacProComputer.mp3 http://www2.ca3.uscourts.gov/oralargument/audio/15-3537USAv....
The gov's argument seems to be that because the defendant doesn't have to give the government the password but rather produce the decrypted hard drives, his actions aren't protected under the fifth. Analogy drawn with unlocking a safe.
EFF counter-argument to the safe analogy is that the encrypted documents do not simultaneously exist in a decrypted form protected by an obstacle, like a safe, but rather are produced as an act of translating the data from decrypted to unencrypted form; the government already has the data on the drives, they just can't understand it without the contents of the defendant's mind.
Justices then press the gov lawyer on whether there are fourth amendment issues in the case, as in whether the government can search all files on the hard drive, if decrypted, for evidence of criminality beyond the specific files they seek. Gov lawyer punts on the issue.
Basically it seems like a steep hill for proponents of encryption. The justices talk about how we're heading for a world where almost everything is encrypted, and encryption proponents are asking the government to give up an enormous amount of power.
- zer0t3ch 10y agoCan you be compelled to provide something that you don't have access to? Were anyone else in this situation, wouldn't it be plausible to simply claim you don't know that password?
- null0pointer 10y agoI've wondered about scenarios where you can legitimately claim to not know the password to decrypt a drive. A few different cases I can think of which may be ruled differently by a court. 1) I use a password manager so I don't know the password. However, I have the means to acquire the password. 2) I use a password manager but somehow lost access to it unintentionally. 3) I use a password manager and lost access to it by design. (eg. Using a dead man's switch of some kind that deletes it if I don't "check in" for some period of time) 4) I used to know the password. However, I suffered a traumatic brain injury and cannot recall it. I obviously don't have the answers but I think these are interesting to think about as different points in a large legal grey area.
- meesterdude 10y agoone i've ben thinking of is a shuffled keymapping or keyboard - you know what password you type, but not what it actually translates into.
- Karlozkiller 10y agoNot bad, but that key-map would have to be accessible unencrypted from the encrypted device no? Unless somehow hard-mod a physical keyboard or something?
- harryh 10y agoThere is ample precedent for forgetfulness in the courts. Imagine a scenario where you are called as a witness in a case against someone else and you say that you can't remember what you saw. If there is evidence to support the idea that you are lying (say, you're being asked an easy question about something that happened yesterday) you can be held in contempt. If there is reason to believe that you are telling the truth (say, you're being asked which of two parking spaces you saw a car in 10 years ago) then you're fine. Same thing goes here. Rational disinterested people (a judge or a jury) will look at the available evidence and make their best judgement about whether you are telling the truth when you say you can't remember.
- plaguuuuuu 10y agoThe distinction is interesting. I wonder if there's a precedent somewhere in which someone wrote a diary in some form of code and was asked to produce the unencrypted diary.