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So the police no longer need to plant drugs. They can just plant encrypted hard drives to which you have 'forgotten' the password. Hard-drives containing hashes

So the police no longer need to plant drugs. They can just plant encrypted hard drives to which you have 'forgotten' the password. Hard-drives containing hashes of 'bad' pics. And then you can spend your life in jail (unless you plead guilty) ?

deleted 9y ago
[deleted]
srge 9y ago
This. And what if you genuinely forget the password to one of your encrypted drive. Couldn't it be used to incriminate you on whatever charge?
- gsnedders 9y ago
  They have to convince a court beyond reasonable doubt that you know the password, AFAIK. An extreme example would be pulling the power plug on a computer you're using as the police arrive: you'd be hard pushed to convince a jury beyond reasonable doubt that you don't know it. Of course, shades of gray, etc.
  - zeep 9y ago
    Maybe if you kept a live Linux USB bootable drive plugged in at all times, you could say that you can't access the installed OS...might have a problem with time-stamps and such but that should be fixable
  - baddox 9y ago
    It's odd that you can be required to prove your own innocence beyond reasonable doubt. I would have sworn that it was supposed to work the other way around.
    - deleted 9y ago
      [deleted]
slim 9y ago
They could simply claim that the free space in your hard drive is an encrypted hard partition
- e12e 9y ago
  Not if it was zeroed out, they couldn't. (Not reasonably, anyway).
  - toolz 9y ago
    So now I should zero out my unused space to prevent indefinite jail time? Seems like a flawed system.
johncolanduoni 9y ago
If they're going to do that, they might as well just leave the pictures unencrypted. I don't see how encrypting it and then going through all these gymnastics in court helps them; in fact doing that seems like a good way to draw unnecessary attention to the frame job.
- canttestthis 9y ago
  No because then he gets convicted and sentenced for a definite amount of time. Leave the hard drive encrypted and he's in jail indefinitely.
  - drostie 9y ago
    I mean, he could have testified at the contempt hearing or presented any sort of evidence that he just plain forgot the password, and the court might have heard that. He opted to not testify or introduce any testimony at this hearing. So that court hearing did not seriously consider memory failure because the defendant did not seriously assert it. (Of course if he was lying about the failure of his memory, that assertion might have gotten him into more hot water -- it would potentially be a perjury charge. But we should not say definitely "he was lying when he said that to police" but just "he didn't make that case for himself at court," if I'm reading these court documents right.) Just to give the relevant excerpts, the supplemental order that the judge issued to explain his reason for the contempt order states that he's using a well-established legal framework for figuring out memory-failure type contempt cases, quoting one of those cases directly as: > A civil contempt proceeding on a witness' asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie[1] showing of contempt; i.e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. If the witness fails to meet this "burden of producing evidence," the government's prima facie case is sufficient to meet its burden of proof for a finding of contempt. The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question. Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. Note that testifying "I don't remember the password" is enough to activate part two. The supplemental order then goes on to apply this in the only obvious way, > [first, ] the Government's prima facie case of contempt was largely, if not entirely, uncontested ... [second, ] at the September 30th Contempt Hearing, Mr. Rawls did not testify or call any witnesses, he did not offer any documentary or physical evidence into the record, and the only evidence he elicited was in the form of cross-examination of the Government's witnesses. Crucially, Mr. Rawls offered no on-the-record explanation for his present failure to comply with the August 27th Order... [therefore, ] in light of the Government satisfying its burden of proof, the Court adjudged Mr. Rawls to be in civil contempt of court. [1] prima facie is a phrase which one might not be familiar with unless one has a philosophy or legal background; it means "at first glance" -- i.e. the government's showing might at a deeper stage be questioned but it has to "look like" contempt in order to start the process.
rayiner 9y ago
They’d also need to plant a sister who will testify that you showed her a bunch of child porn.
- 300bps 9y ago
  The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn on the encrypted hard disk. The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?
  - colejohnson66 9y ago
    Precedent
  - harryh 9y ago
    You have misunderstood what "foregone conclusion" means in this case. It is not a foregone conclusion that this is child porn on the disks. It is a foregone conclusion that there is something on the disks and that something is encrypted with a password known by the defendant. See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
    - 300bps 9y ago
      You're mistaken. Source: https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/ https://arstechnica.com/tech-policy/2017/03/man-jailed-indef...
      - harryh 9y ago
        The author of the arstechnica piece (who, unlike the author of the Washington Post piece, is not a laywer) hasn't really explained things well. It's worth reading the actual decision from the court[1]. A relavent paragraph: In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 30. Note that the issue with this question is the "existence, custody, and authenticity" of the evidence not its actual contents. 1. https://arstechnica.com/wp-content/uploads/2017/03/rawlsopinion.pdf https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...
mcguire 9y ago
As the note at the bottom of the article implies, "hashes" of files on an encrypted disk? WTF? "Bleeping Computer users have pointed out that you cannot match file hashes to encrypted content. The article was updated with a link to court documents from where the prosecution's statement was cited."
- 35bge57dtjku 9y ago
  I'd like to know how that works.
- cocoablazing 9y ago
  The hashes were acquired as Freenet content hash keys. He was sharing CP on freenet, which the government scrapes for known CP signatures.
2OEH8eoCRo 9y ago
Did you read? He showed the pictures to his sister so the court is reasonable certain that he does know the password. If that's the case then he lied to police which is an offense in itself.

deleted 9y ago

[deleted]

srge 9y ago

This. And what if you genuinely forget the password to one of your encrypted drive. Couldn't it be used to incriminate you on whatever charge?

gsnedders 9y ago
They have to convince a court beyond reasonable doubt that you know the password, AFAIK. An extreme example would be pulling the power plug on a computer you're using as the police arrive: you'd be hard pushed to convince a jury beyond reasonable doubt that you don't know it. Of course, shades of gray, etc.
- zeep 9y ago
  Maybe if you kept a live Linux USB bootable drive plugged in at all times, you could say that you can't access the installed OS...might have a problem with time-stamps and such but that should be fixable
- baddox 9y ago
  It's odd that you can be required to prove your own innocence beyond reasonable doubt. I would have sworn that it was supposed to work the other way around.
  - deleted 9y ago
    [deleted]

slim 9y ago

They could simply claim that the free space in your hard drive is an encrypted hard partition

e12e 9y ago
Not if it was zeroed out, they couldn't. (Not reasonably, anyway).
- toolz 9y ago
  So now I should zero out my unused space to prevent indefinite jail time? Seems like a flawed system.

johncolanduoni 9y ago

If they're going to do that, they might as well just leave the pictures unencrypted. I don't see how encrypting it and then going through all these gymnastics in court helps them; in fact doing that seems like a good way to draw unnecessary attention to the frame job.

canttestthis 9y ago
No because then he gets convicted and sentenced for a definite amount of time. Leave the hard drive encrypted and he's in jail indefinitely.
- drostie 9y ago
  I mean, he could have testified at the contempt hearing or presented any sort of evidence that he just plain forgot the password, and the court might have heard that. He opted to not testify or introduce any testimony at this hearing. So that court hearing did not seriously consider memory failure because the defendant did not seriously assert it. (Of course if he was lying about the failure of his memory, that assertion might have gotten him into more hot water -- it would potentially be a perjury charge. But we should not say definitely "he was lying when he said that to police" but just "he didn't make that case for himself at court," if I'm reading these court documents right.) Just to give the relevant excerpts, the supplemental order that the judge issued to explain his reason for the contempt order states that he's using a well-established legal framework for figuring out memory-failure type contempt cases, quoting one of those cases directly as: > A civil contempt proceeding on a witness' asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie[1] showing of contempt; i.e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. If the witness fails to meet this "burden of producing evidence," the government's prima facie case is sufficient to meet its burden of proof for a finding of contempt. The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question. Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. Note that testifying "I don't remember the password" is enough to activate part two. The supplemental order then goes on to apply this in the only obvious way, > [first, ] the Government's prima facie case of contempt was largely, if not entirely, uncontested ... [second, ] at the September 30th Contempt Hearing, Mr. Rawls did not testify or call any witnesses, he did not offer any documentary or physical evidence into the record, and the only evidence he elicited was in the form of cross-examination of the Government's witnesses. Crucially, Mr. Rawls offered no on-the-record explanation for his present failure to comply with the August 27th Order... [therefore, ] in light of the Government satisfying its burden of proof, the Court adjudged Mr. Rawls to be in civil contempt of court. [1] prima facie is a phrase which one might not be familiar with unless one has a philosophy or legal background; it means "at first glance" -- i.e. the government's showing might at a deeper stage be questioned but it has to "look like" contempt in order to start the process.

rayiner 9y ago

They’d also need to plant a sister who will testify that you showed her a bunch of child porn.

300bps 9y ago
The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn on the encrypted hard disk. The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?
- colejohnson66 9y ago
  Precedent
- harryh 9y ago
  You have misunderstood what "foregone conclusion" means in this case. It is not a foregone conclusion that this is child porn on the disks. It is a foregone conclusion that there is something on the disks and that something is encrypted with a password known by the defendant. See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
  - 300bps 9y ago
    You're mistaken. Source: https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/ https://arstechnica.com/tech-policy/2017/03/man-jailed-indef...
    - harryh 9y ago
      The author of the arstechnica piece (who, unlike the author of the Washington Post piece, is not a laywer) hasn't really explained things well. It's worth reading the actual decision from the court[1]. A relavent paragraph: In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 30. Note that the issue with this question is the "existence, custody, and authenticity" of the evidence not its actual contents. 1. https://arstechnica.com/wp-content/uploads/2017/03/rawlsopinion.pdf https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...

mcguire 9y ago

As the note at the bottom of the article implies, "hashes" of files on an encrypted disk? WTF? "Bleeping Computer users have pointed out that you cannot match file hashes to encrypted content. The article was updated with a link to court documents from where the prosecution's statement was cited."

35bge57dtjku 9y ago
I'd like to know how that works.
cocoablazing 9y ago
The hashes were acquired as Freenet content hash keys. He was sharing CP on freenet, which the government scrapes for known CP signatures.

2OEH8eoCRo 9y ago

Did you read? He showed the pictures to his sister so the court is reasonable certain that he does know the password. If that's the case then he lied to police which is an offense in itself.