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When the FBI used the All Writs Act against Apple to attempt to force Apple to bypass the password functions of an iPhone or develop a backdoor method of access
by Powerofmene 9y ago
When the FBI used the All Writs Act against Apple to attempt to force Apple to bypass the password functions of an iPhone or develop a backdoor method of access, the courts ruled that decryption was not a violation of the Fifth Amendment "if the contents were a foregone conclusion."
So if "foregone conclusion" is the criteria that must be met, I have to ask how the contents of this man's external hard drive could be conclusively a foregone conclusion. Maybe he did download thousands of images. What if he no longer possess them? He could have deleted them. The police have been known to make mistakes and have made high profile mistakes' i.e., the Atlanta Olympics bombing when they all but destroyed Richard Jewell.
What if he decrypted it and there was no child porn but there were records of say a store selling drugs etc on the dark net? Then he would have incriminated himself for something they had zero knowledge about because the court issued this writ.
The government states that his sister acknowledges him showing her many explicit photos. Did she turn in her brother? Why would a man show his sister pornographic images? Did she tell anyone around the time this happened that this occurred? Seems to me to be unusual at the least for the government to hang their hat on something uncorroberated. If the sister had access to the computer' who is to say that she did not download the images. He could have seen them and deleted them. Seems that a mere he said -she said is enough to have the government invade your privacy and demand you willingly set aside your consistutional protections or risk going to jail when you have not been charged with, let alone convicted of, a crime.
We have to be very careful when we start seeing civil liberties and constitutional protections erode. Tech companies have been under siege from the government's use of the All Writs Act in the last two decades and as long as they are successful, I do not foresee them changing their methods.
- sw00pur 9y ago> What if he no longer possess them? He could have deleted them. If that's the case he should give the FBI the key. That way he'll prove he wasn't possessing child pornography.
- canttestthis 9y agoNo, he might have files on the drive which would incriminate him in some other crime. He should not be forced to incriminate himself.
- sw00pur 9y agoThat's exactly what I believe: there are files there that will incriminate him in committing those acts himself. I find it hard to argue he should be left alone, but I suppose that's just a gut reaction?
- Powerofmene 9y agoWhile this may be true, the government has asked the court to order him to decrypt it as they search for those images. If they are after a bigger network of people sharing these images, then they should say so and grant him immunity or work out some type of deal with him. As I said earlier I am not taking a position on whether what he did was right or wrong or on the moral aspects of the subject matter but here in the US the government must have a warrant to search electronic devices and that warrant must name the material they are seeking. If they list images related to child pornography, child molestation, etc they cannot go looking for evidence of drug dealing per se. But let's assume they find evidence of drug dealing, do you not think they will simply broaden the scope of their investigation and go looking in every corner of s life to now prove something they previously were unaware of before they hypothetically gain access to the drive.
- cmurf 9y agoThe logic of innocent until proven guilty philosophy, is that it's better for a guilty person to go free than for an innocent person to be jailed. Hence the burden on proving guilt beyond a reasonable doubt. Probability isn't sufficient, in this philosophy, because it's a trap. Of course probably he has on these drives what prosecutors claim, or worse, evidence of his direct involvement. And the trap is the injection of lack of sympathy into the decision making process; of course any reasonable person will say, eww he's almost certainly a creep therefore I'm not sympathetic to his indefinite incarceration. But that's exactly what the philosophy was supposedly designed to avoid, any possibility that innocent people get jailed; not preventing guilty people going free. This is why you see a lot of effort by prosecutors defending against introduction of new evidence to prove innocence; because proving innocence well after a guilty verdict, itself shows the possibility of jailing innocents. It taints the system. And then you get these ever more perverse notions that executing those who later prove themselves innocent is not an unconstitutional execution when that person had received a free and fair trial finding them guilty of a capital crime. http://www.businessinsider.com/antonin-scalia-says-executing-the-innocent-is-constitutional-2014-9 http://www.businessinsider.com/antonin-scalia-says-executing...
- Powerofmene 9y agoOr maybe he is trying to stand his ground and preserve his right to privacy or as I said previously, maybe there is some totally unrelated crime that unlocking the external hard drive would expose.
- Powerofmene 9y agoOr maybe he is a firm believer that there is no faster way to erode our constitutional protections than to voluntarily surrender them. Or maybe he believes that damn pesky constitution (sarcasm) applies to everyone including the government when it comes to search and seizure, and to himself when it comes to right to due process of law, and the protection against self incrimination to name just a few. Or maybe there is child pornography on there and he does not want to charged and tried and vilified in the court of public opinion. Right now he can stand on "higher ground" by making a constitutional law argument than exposing a secret that he may be ashamed of (guessing here). Or maybe he truly does not know the password? Despite the governments best efforts they have not been able to crack it so it must be quite secure/complicated.
- ajross 9y agoMaybe. But let's be honest here: there's CP on that drive. This is a good case for spinning around on HN arguing about the extent of the bill of rights protections in the face of creative application of the All Writs Act. It's a terrible one for actually defending the perp. I mean, come on.
- Powerofmene 9y ago>It's a terrible one for actually defending the perp. I mean, come on. Who is defending him? I cannot in good conscience call him a perp as he has not been charged with, let alone convicted of, a crime. I am only pointing out that there are a myriad of possibilities one of which is that there is child pornography on the drive. However, we do not know that for a fact. But just as I said, he may fear decrypting the drive because of what is on it (only he knows at this point). He may think it is better to be seen as the little guy being bullied by big brother than to be vilified by those who will presume him guilty of having "CP on that drive" and becoming "the perp" without due process. Forgive me if I am incorrect but don't our laws apply equally regardless of the crime one is suspected of commiting?
- ajross 9y ago> Forgive me if I am incorrect but don't our laws apply equally regardless of the crime one is suspected of commiting? The All Writs Act is a law, and it allows exactly what is happening here. The question at hand is about whether that is in conflict with the fourth and fifth amendments. Equal protection is an entirely different thing and not at issue here.
- e40 9y agoIf he deleted them, there might be remnants of the files which are recoverable. That would be the same as possessing them.
- plandis 9y agoHe claims he doesn't remember his password.
- cmiles74 9y agoAnd at this point I am tempted to believe him. Apparently he's tried to enter the password for the FBI and has been unsuccessful.
- shaggerty 9y agoThe article says that there are hashes of known child pornography content on the drive.
- ApolloFortyNine 9y agoWhat kind of shitty encryption revealed that information?
- kobeya 9y agoHow does that happen? Technically I mean? This isn't full disk encryption? What terrible software leaked the hashes of what it was encrypting? This seems highly relevant to the discussion.
- fnordsensei 9y agoIt's a misunderstanding. The hashes are of files he's believed to have downloaded, and they want the disks unlocked to see if they're there.
- kobeya 9y agoI see. I think this is my understanding of where the hashes come in -- law enforcement doesn't keep child porn around for comparison. That would be asking for abuse. They instead keep a list of cryptographic hashes of identified child porn files, and they want to see if this hard drive, once decrypted, has any files that match those hashes. Seems easily defeated by a technical adversary, but probably good enough for most police work.
- gscott 9y agoIf they have a large family inheritance then she would have plenty of reason to falsely turn him in.
- Veratyr 9y agoThe "forgone conclusion" argument makes no sense to me. If there's enough evidence that the conclusion is "forgone", what is there to gain by decrypting the contents?
- Powerofmene 9y agoThe forgone conclusion is that evidence likely exists on the drives and as such the judge issued the Writ pursuant to the All Writs Act. But to prosecute someone in a court of law it takes evidence, admissible evidence, and conclusions that it likely sits on an external hard drive is not in and of itself evidence of pornographic images of children.
- Veratyr 9y agoDoesn't this conflict with the precedent set by, for example, safe combinations?
- Powerofmene 9y agoIf I remember correctly it does but I cannot recall what the courts reasoning For deviating from the safe combination decision.