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So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is t

So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is the bad guy, until they come for them.

stinkytaco 9y ago
But they are not asking him to testify, admit guilt, or anything like that. They aren't even asking him to tell them the password, just to enter the password to decrypt. This is more like expecting access to your house when a search warrant is provided. EDIT: To be clear, it's not that I feel he should necessarily be compelled, but rather that a fifth amendment defense is weak in this case, since it's not a testimony at all, but rather revealing already existing material (as opposed to compelling the defendant to write a confession).
- dopamean 9y ago
  This may be a dumb question but I want to make sure I'm getting everything here... they have a warrant to search the hard drive?
  - stinkytaco 9y ago
    Yes, there is a court order compelling him to unlock the drives. The really questionable thing here is that they haven't charged him with any crimes, even contempt. That shows there may be a desire to establish some precedent in this case. EDIT: Scratch that, you can hold someone in jail as long as they are in contempt of court, apparently.
- AnthonyMouse 9y ago
  > They aren't even asking him to tell them the password, just to enter the password to decrypt. How are you distinguishing one from the other? What makes compelling someone to speak the password aloud different from compelling them to type it with a keyboard?
  - stinkytaco 9y ago
    Well, the government has made a distinction for physical security [1]. So it's probably not too much of a jump to make. That case is probably the closest case law to this one we have, though the facts aren't quite the same (the police didn't have as much evidence for what might be on the phone in that case). [1]: https://arstechnica.com/tech-policy/2017/01/court-rules-against-man-who-was-forced-to-fingerprint-unlock-his-phone/ https://arstechnica.com/tech-policy/2017/01/court-rules-agai... EDIT: Worth pointing out that line in that case is really "physical evidence" vs. "knowledge". The court argues that the fingerprint unlocking the smartphone is closer to a blood sample than a testimony. However, I could definitely see a court seeing this as "it's ok to make someone unlock" because they didn't just collect the physical evidence, but made him take the action of unlocking the phone.
    - AnthonyMouse 9y ago
      The obvious difference is that fingerprints aren't testimony. They aren't in your mind, they're on your hand.
- AlexCoventry 9y ago
  How can they validate that he's provided an accurately decrypted hard drive, without the password?
geofft 9y ago
It doesn't override the Constitution, though. He's not compelled to testify against himself. In a pre-computer society, we'd understand the Fifth Amendment as allowing you not to testify to your crimes, but not allowing you to refuse the police the right to search your house with a court-signed warrant, simply because you keep incriminating things in the house. It might exploit a loophole, though (and I also think there's a lot of room to argue over whether that analogy is actually the right one). The one thing that's different with computers is that usually the police can just break into your house (or a safe, or something like that) if you refuse to give them the key, and encrypted drives have no other alternate route in. So you wouldn't be kept in prison indefinitely for refusing to comply with a warrant; you'd just get your door knocked down.
- deleted 9y ago
  [deleted]
- AnthonyMouse 9y ago
  > The one thing that's different with computers is that usually the police can just break into your house (or a safe, or something like that) if you refuse to give them the key, and encrypted drives have no other alternate route in. So you wouldn't be kept in prison indefinitely for refusing to comply with a warrant; you'd just get your door knocked down. This isn't really new with computers. People have been writing in code since time immemorial. What would have happened two hundred years ago if some defendant had been using a book cipher and the police don't know which page of which book is the key?
  - goodcanadian 9y ago
    This isn't really new with computers. People have been writing in code since time immemorial. What would have happened two hundred years ago if some defendant had been using a book cipher and the police don't know which page of which book is the key? I'm guessing that they would have brute-forced it. The complexity is much lower than the modern case as is the number of potential keys. I can imagine someone spending a fair bit of time in jail for contempt during this procedure, but it would not be indefinite. I can also just see the police calling in a code breaker and not bothering with the court order to tell them the key.

So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is the bad guy, until they come for them.

stinkytaco 9y ago

But they are not asking him to testify, admit guilt, or anything like that. They aren't even asking him to tell them the password, just to enter the password to decrypt. This is more like expecting access to your house when a search warrant is provided. EDIT: To be clear, it's not that I feel he should necessarily be compelled, but rather that a fifth amendment defense is weak in this case, since it's not a testimony at all, but rather revealing already existing material (as opposed to compelling the defendant to write a confession).

dopamean 9y ago
This may be a dumb question but I want to make sure I'm getting everything here... they have a warrant to search the hard drive?
- stinkytaco 9y ago
  Yes, there is a court order compelling him to unlock the drives. The really questionable thing here is that they haven't charged him with any crimes, even contempt. That shows there may be a desire to establish some precedent in this case. EDIT: Scratch that, you can hold someone in jail as long as they are in contempt of court, apparently.
AnthonyMouse 9y ago
> They aren't even asking him to tell them the password, just to enter the password to decrypt. How are you distinguishing one from the other? What makes compelling someone to speak the password aloud different from compelling them to type it with a keyboard?
- stinkytaco 9y ago
  Well, the government has made a distinction for physical security [1]. So it's probably not too much of a jump to make. That case is probably the closest case law to this one we have, though the facts aren't quite the same (the police didn't have as much evidence for what might be on the phone in that case). [1]: https://arstechnica.com/tech-policy/2017/01/court-rules-against-man-who-was-forced-to-fingerprint-unlock-his-phone/ https://arstechnica.com/tech-policy/2017/01/court-rules-agai... EDIT: Worth pointing out that line in that case is really "physical evidence" vs. "knowledge". The court argues that the fingerprint unlocking the smartphone is closer to a blood sample than a testimony. However, I could definitely see a court seeing this as "it's ok to make someone unlock" because they didn't just collect the physical evidence, but made him take the action of unlocking the phone.
  - AnthonyMouse 9y ago
    The obvious difference is that fingerprints aren't testimony. They aren't in your mind, they're on your hand.
AlexCoventry 9y ago
How can they validate that he's provided an accurately decrypted hard drive, without the password?

geofft 9y ago

It doesn't override the Constitution, though. He's not compelled to testify against himself. In a pre-computer society, we'd understand the Fifth Amendment as allowing you not to testify to your crimes, but not allowing you to refuse the police the right to search your house with a court-signed warrant, simply because you keep incriminating things in the house. It might exploit a loophole, though (and I also think there's a lot of room to argue over whether that analogy is actually the right one). The one thing that's different with computers is that usually the police can just break into your house (or a safe, or something like that) if you refuse to give them the key, and encrypted drives have no other alternate route in. So you wouldn't be kept in prison indefinitely for refusing to comply with a warrant; you'd just get your door knocked down.

deleted 9y ago
[deleted]
AnthonyMouse 9y ago
> The one thing that's different with computers is that usually the police can just break into your house (or a safe, or something like that) if you refuse to give them the key, and encrypted drives have no other alternate route in. So you wouldn't be kept in prison indefinitely for refusing to comply with a warrant; you'd just get your door knocked down. This isn't really new with computers. People have been writing in code since time immemorial. What would have happened two hundred years ago if some defendant had been using a book cipher and the police don't know which page of which book is the key?
- goodcanadian 9y ago
  This isn't really new with computers. People have been writing in code since time immemorial. What would have happened two hundred years ago if some defendant had been using a book cipher and the police don't know which page of which book is the key? I'm guessing that they would have brute-forced it. The complexity is much lower than the modern case as is the number of potential keys. I can imagine someone spending a fair bit of time in jail for contempt during this procedure, but it would not be indefinite. I can also just see the police calling in a code breaker and not bothering with the court order to tell them the key.