27 ms·

Compelled Decryption and the Privilege Against Self-Incrimination

109 points by mrleiter 8y ago

michaelt 8y ago
The precedents on snooping that have served us up to the 1970s are outdated for several reasons. On one hand, it's true that where in the past most people would have sent letter and kept physical record books that could be siezed, the modern equivalents are often encrypted. On the other hand, modern phones don't only contain the letters and records someone in the 1970s would have kept. People have GPS location records, records of things they've read, heart rate monitor records, naked photos of their lovers, and all the credentials needed to empty their bank accounts. There is also a change in scalability; while in principle monitoring on 0.01% and on 99.99% of the population may be equivalent, in practice a quantitative difference of so many orders of magnitude is quantitatively different. In the 1970s, trailing someone everywhere was so expensive large-scale monitoring was impossible, and rules to keep tabs on the impossible weren't needed. In the modern age, the costs have dropped to a fraction of a penny, but the protections against abuses haven't kept pace. Achieving a reasonable balance will be difficult.
- FakeComments 8y ago
  Aside from GPS logs, which of those things wouldn’t have been on your desk, when the police raided your home office for papers in the 1970s? The problem is with overly broad warrants, that allow for whole device imaging — though we sometimes see that with real warrants too, which just grab everything.
ohazi 8y ago
> An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password. I strongly disagree with this interpretation. It's an old argument, I follow the reasoning behind it (I actually think the author does a good job arguing in favor of this position), but at the end of the day I'm just too uncomfortable with how this would work in practice. During a normal search, they get a warrant, tell you to produce some documents, and if you don't comply then they go get the documents themselves. If they can't find the documents, then they can come back to you with obstruction or contempt charges, but this is the rare case. With passwords, the rare case becomes the common case. Enough people are going to suddenly "forget" their passwords that law enforcement and judges are going to roll their eyes and throw the book at anyone who actually forgets a password. I don't believe it's possible for anyone to prove that someone knows a password. People can forget at any time, for any number of reasons, including trauma. What's going to happen when police have evidence that I did, at one point, know the extra-super-secret password to some old confidential document that I set up a pgp key to encrypt and promptly forgot about? What about when my harebrained DIY deniable encryption scheme means that I genuinely don't know which of the following hundred-thousand files I know the password to, even though I obviously must know, because I set it up in the first place? There's no law against being a paranoid doofus.
- mirimir 8y ago
  Indeed, the article doesn't address the question of forgetting. And generally, it over-complicates things. Let's say that you don't know the password, and never did, because it's not your device. If ordered to decrypt, you just say: "I don't know the password." You don't plead the Fifth. Because you simply don't know the password, and the thought of self-incrimination would never occur to you. Now let's say that it's your device, and that you did know the password, at one time. But maybe only for a few seconds after you set it, and then forgot to write it down. Or maybe you did that intentionally, to nuke a device before resale. Or maybe you have honestly just forgotten it. I have one or two old drives around like that, so hey ;) Anyway, in that situation, you'd just say: "I've forgotten the password." But now, let's say that it's your device, and that you do in fact know the password. What do you say? If you plead the Fifth, that's basically an admission that you know the password. Because, as I've said, the thought of self-incrimination would have never occurred to you, if you didn't know it. So you don't do that. You just say that you've forgotten it. There are, I admit, some concerns with that approach. First, you're lying to an agent, and penalties for that can be extremely severe. So it's your call to make. Also, if an agent testifies that you were using the device when swatted, that claim may seem iffy. But if pleading the Fifth is no longer an option, what are the alternatives? You can at least claim trauma. And if you're old like me, a ministroke.
  - pif 8y ago
    > But if pleading the Fifth is no longer an option, what are the alternatives? Simple: just give the password!
    - bepvte 8y ago
      But then the state has access to my linux iso collection....
    - Jotra7 8y ago
      Hey guy, do you like the taste of boots or are you naturally a lickspittle?
    - 8y ago
baybal2 8y ago
Author: Orin S. Kerr
- swebs 8y ago
  Am I supposed to know who that is?
  - mirimir 8y ago
    If you follow this stuff, arguably yes.
    - snvzz 8y ago
      Why should I need prior knowledge to follow the conversation? Just describe who that is, and why it is relevant to mention it.
      - mirimir 8y ago
        I'd say that one needs prior knowledge to follow maybe 70% of HN posts. And some of it's quite arcane. I could have linked the Wikipedia article, but that's getting pretty close to LMGTFY, no?
  - CompanionCuuube 8y ago
    Kerr is a law professor who not only has a career in prestigious institutions but also an engineering background.
nickdothutton 8y ago
There's no legal/moral/ethical silver bullet here.It's a difficult enough problem even without allowing for the possibility of a tyrannical/abusive state (which you could argue is a failure mode of a democracy, and is less rare than you think).
deleted 8y ago
[deleted]
dbg31415 8y ago
Encryption is a human right. We all agree that we shouldn't be compelled to testify against ourselves. Right? Ok... now let's think of Geordi La Forge. Were he to commit a crime, could the government compel him to produce encrypted recordings from his visor? And hopefully you'll come to the conclusion, "No, because that visor is part of him. He shouldn't have to give up his sight just to maintain his ability not to testify against himself." And from there it's just a few steps towards, "Yes, I do need my cell phone to be a productive human... and yes, tech I need to be a productive human should be covered under the same protections as I am." Plenty of other ways for cops to catch the bad guys.
- pif 8y ago
  > Encryption is a human right. Who said so? UN? Some Constitutions? Who?
  - dbg31415 8y ago
    Most notably, Amnesty International. * Encryption: A Matter of Human Rights || https://www.amnestyusa.org/reports/encryption-a-matter-of-human-rights/ https://www.amnestyusa.org/reports/encryption-a-matter-of-hu...
    - CompelTechnic 8y ago
      I agree with the principal that encryption should be a human right, and I agree that I can construct thought experiments that "prove", or more correctly, show sound reasoning for, the principal. However, nation-states do not run off of principals. They run off of enough people agreeing on something that they get to decide what is right.
  - eadmund 8y ago
    Well, I assert that encryption is a type of arms, and that it's the right of every free man (so, children/prisoners/&c. are excepted) to own, bear & use arms peaceably. In the U.S., one can make an argument that the Second Amendment protects the right to encryption. But even if no constitution or law in the world protects a right, it's still a right — just a right without legal recognition.
michaelmrose 8y ago
"This paper solely addresses the Fifth Amendment framework for compelling acts of decryption by entering passwords without disclosing it to the government. Compelled use of biometrics and compelled disclosure of passwords raise different Fifth Amendment issues." Are we to believe that typing it in the presence of officers of the court doesn't communicate the password to officers? This seems questionable. I'm sure judges love, technically we are violating your clients rights but as long as officer smith looks over that away we TECHNICALLY wont be. Further one can argue both having forgotten a password AND the fifth amendment. You can argue that the act of trying to unlock it is testimonial AND that you don't know the password. Prove them wrong. You could argue that the authorities have presented you with a device that has had the password changed. If they actually do this do they just get to lock you up for however long they feel like? It's probably true in many cases that you can establish that a device was used by a person, bought by a person, that that person PROBABLY knows the password. This isn't enough for it to be a foregone conclusion. This reads like complicated wishful thinking designed to relieve the prosecution of the burden of doing intelligent police work.
- appleflaxen 8y ago
  > You could argue that the authorities have presented you with a device that has had the password changed. If they actually do this do they just get to lock you up for however long they feel like? I am strongly against compelled decryption, but haven't come across this argument before. I think it's a brilliant point.
  - nabla9 8y ago
    Argument that represents unlikely logical possibility rarely wins.
    - jamescostian 8y ago
      Except when fear comes into play. You might enjoy reading this: https://psychology.stackexchange.com/questions/9200/why-do-people-fear-statistically-unlikely-things https://psychology.stackexchange.com/questions/9200/why-do-p... In this particular case, there is a fear that one could get a severe sentence (e.g. capital punishment) without having even committed a crime, all due to the police changing their password. If a person is afraid enough of that (unlikely) potential outcome, they may ignore statistics all together and follow their fear. For more examples of how much people ignore probability, consider https://money.cnn.com/2017/08/24/news/economy/lottery-spending/index.html https://money.cnn.com/2017/08/24/news/economy/lottery-spendi... and https://www.quora.com/How-much-does-a-casino-make-daily https://www.quora.com/How-much-does-a-casino-make-daily
NoblePublius 8y ago
Passwords are keys. Providing a key to your safe is not self incrimination. The 5th is unquestionably specific to self incriminating testimony.
- bcgraham 8y ago
  Providing the combination to your safe seems like a closer analogy, and I believe it is protected from compulsion by the Fifth Amendment.
  - ams6110 8y ago
    A safe can always be opened by force. An encrypted file cannot, assuming a suitably complex password.
    - philjohn 8y ago
      Until you get to an encrypted file that has such a complex password it would take all of the energy and longer than the heat death of the universe to compute, it's just that you can't open it by force within a suitable timeframe.
      - DuskStar 8y ago
        An encrypted file cannot, given P!=NP (and a host of other assumptions, but P!=NP is the foundation), be decrypted. So require proof that the file is not decryptable by other means before you can compel entering a password ;)
    - cvwright 8y ago
      So citizens are being asked to give up fundamental freedoms because law enforcement is failing to do its job?
  - TheCondor 8y ago
    does the fifth guarantee some universal concept of mental privacy or does it prevent that information from being used in court? You can’t take the fifth before a grand jury. I think there is a certain presumption that the actors are gentlemen that the law assumes. If you feel really strongly about that sort of privacy, you’d be well served to not find yourself in a criminal court trial. There is both ambiguity and case law here.
lsiebert 8y ago
i don't understand how this can be an argument regarding the 5th amendment right against self incrimination if it doesn't address schmerber vs California (https://supreme.justia.com/cases/federal/us/384/757/ https://supreme.justia.com/cases/federal/us/384/757/) which found "Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds." I'm not an expert, but I'd note that Fisher Vs. United States which gets brought up several times was about the accused individual's lawyer producing documents the individual had given them. And a large part of the judgment in the case is the difference between ownership and possession (as seen in the decision of couch vs. united states which it relies on). In any case fisher said that you couldn't be compelled to testify to affirm the truth of the contents of the documents sought and that the password would decrypt them. But decrypting files is affirming a truth in the documents sought, as the government lacked testimony of their encrypted existence on that hard drive and of the passwords ability to unlock them.
BlackFly 8y ago
This interpretation of the right to remain silent frightens me. The example I was always given to point out the need of such a right is the police saying, "Alright, show us where you buried the body." And if they can "prove" that you buried the body but you cannot actually take them there because you didn't bury the body then you go to prison forever. The government should not have the power to go on a fishing expedition through my device. If the government can already prove that something illegal is on my device, then they do not need that thing in order to convict me of a crime. It is just superfluous to compel me to do things and it is dangerous.
- deleted 8y ago
  [deleted]
- wolfgke 8y ago
  > The example I was always given to point out the need of such a right is the police saying, "Alright, show us where you buried the body." And if they can "prove" that you buried the body but you cannot actually take them there because you didn't bury the body then you go to prison forever. I often say that Franz Kafka was not a littérateur, but a crown witness (he indeed studied law).
- ben0x539 8y ago
  I really sympathize with the desire to have my computing device extremely protected against scrutiny because I like to think of it as an extension of my own memory and cognitive ability etc and don't want to worry about maintaining an airgap between in-brain capacity and external capacity for liability reasons. However I am not very optimistic that this line of argument is going to fly. Why do you need to search my car for illegal drugs if you can't already prove that I have them? Why do you need insight into my finances if you can't already prove that I am evading taxes? As long as we, in principle, give the legal system a mandate to investigate crimes, there is always going to be a point where arguments around reasonable suspicions are going to prevail against privacy concerns. Ultimately I don't think it's realistic to hope to create a comfortable relationship with a malevolent judicial establishment by adding some hoop or other for them to jump through before they get to fuck you over.
jknz 8y ago
There may be technological solutions to this. Say your encrypted files need two secrets, one in your possession, one in possession of a third party. To decrypt your file, use your secret and ask the third party for their secret. To get their part of the secret, either call them or type a password or use some other private key. It can be automatic and fast. The role of the third party is to block the secret retrieval at any suspicion of law enforcement involvement. Second secret then cannot be retrieved and the files are safe. Also, if you type the wrong password, the third party blocks retrieval and will reactivate it after investigating whether you are in law enforcement company. Law enforcement may try to compel the third party to give the second secret. Having third party in another country, or multiple third parties in multiple countries may solve this. Another idea is that the third party is your lawyer. You shared that second secret with your lawyer and told him to stop sharing or destroy the second secret if you ever meet law enforcement. You get arrested, stay silent, your lawyer is called; before anything else the lawyer blocks retrieval of the second secret. This may be attorney/client privilege and would block law enforcement from compelling the lawyer to give the second secret. Add some randomness (retrieval of second secret gets blocked with probability 1/10 when the correct password is entered) to get plausible deniability. Some people could be interesting to pay Apple a lot to implement this. Or some law firms could start selling such lawyer phones. Edit: typos, last sentence
- rlpb 8y ago
  > Another idea is that the third party is your lawyer. Then that isn't your lawyer; rather your co-conspirator. I'm pretty sure that if you're in a conspiracy with your "lawyer", you'll be charged together and you'll need another actual lawyer to represent you.
- commandlinefan 8y ago
  That's called "key escrow" - they tried that with the Clipper chip back in the 90's. It was mostly rejected because nobody trusted the third parties - and in hindsight, they were correct not to.
handelaar 8y ago
A rare example of a document which you can tell is definitely mistaken without going any further than its title. US civics-class-takers will naturally remember learning about how the first ten amendments to the constitution are commonly referred to as the "Bill of Privileges".
pdpi 8y ago
A bit meta, but the abstract employs a very interesting rhetorical device: "An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password." On the surface it almost looks like it argues for the opposite position by using the "Always do A unless exceptional conditions are met" form, but then guts that by making the "exceptional" condition pretty damn trivial.
salawat 8y ago
The problem in my mind comes in when you look at what type of systemic abuse you enable by throwing "common sense" out the window. Suddenly, every chunk of 0's and 1's in the hands of an unscrupulous/ambitious/pressured prosecutor becomes a ticket to indefinite incarceration. For every criminal this practice may help collar, I see too much potential for and utility as a form of political and civic suppression. Someone being problematic? Have the geek find evidence of what might be an encrypted volume and order the problematic person to supply the keys to open it. Presto. Enjoy your time in the Klink. You can't let such harmful precedents stand. Heck, who is to say someone doesn't just write a worm to create small encrypted caches on everyone's machine? Does that then put everyone in a Spartacus situation? This is dangerous ground in which the courts are treading, and no less than 2 Constitutionally defined rights are in conflict. Personally, I prefer a system with maximum difficulty with regards to the cessation of Rights. A government empowered to ignore your Rights is well on the road to hell. There is a balance somewhere, but I am at a loss as to where it is at the moment. Where ever it is though, it isn't on indefinite cessation of freedoms just because the State has a hunch there might be something relevant they can't read.
mistercow 8y ago
This completely ignores one of the purposes of the Fifth Amendment, which is to remove the incentive for law enforcement to torture suspects for information. The fact that you know they have the password has no bearing on that.
jimison 8y ago
The paper is arguing FOR self-incrimination, not against it.
libeclipse 8y ago
I'd also recommend this other interesting read by the same author and co-authored by Bruce Schneier: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2938033 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2938033
LinuxBender 8y ago
This will be an unpopular opinion, but hopefully enough people were paying attention in school when they taught the concepts of mutually assured destruction. Hopefully a percentage of the population have time based countermeasures moving along in the event that the courts get too muddied by poorly defined laws, or laws with excessive intentional wiggle room for interpretation. I am probably fantasizing. It might explain why I enjoy dystopian films. My fantasy is that people will rise above a broken system rather than playing their game.
deleted 8y ago
[deleted]
bensonn 8y ago
These arguments almost always seem like encryption is about access to information but isn't encryption about understanding information? If they are asking for a key to decrypt then they already have access to the data. If you write a note nobody will ever have access to- say you slipped it onto Voyager 1, there would be no point in encrypting it. Encryption is to protect against (possibly) accessible data. Old-school though experiment- I encrypt all my paper notes using a simple substitution cipher. They seize my notes and have full physical access to them. If they don't understand my notes can I be forced to explain my cipher? If I comply and the unscrambled contents are "RedFalcon has delivered the ApplePie to the EndOfTheRainbow". This is basically another substitution cipher. Can I be forced to explain this under threat of jail if I don't explain it in a way they accept? I realize modern encryption is way beyond this, and way beyond my understanding. Has the basic principle of access vs understanding changed?
- fandango 8y ago
  Exactly. It'd like to make this analogy myself: Forcing somebody to decrypt a drive is like forcing somebody to keep rearranging a bunch of papers/notes (he or she supposedly produced) until a punishable offence is noticed. Are you not able to compose a satisfactory result? It's jail for you because you are hiding something.

109 points by mrleiter 8y ago

The precedents on snooping that have served us up to the 1970s are outdated for several reasons. On one hand, it's true that where in the past most people would have sent letter and kept physical record books that could be siezed, the modern equivalents are often encrypted. On the other hand, modern phones don't only contain the letters and records someone in the 1970s would have kept. People have GPS location records, records of things they've read, heart rate monitor records, naked photos of their lovers, and all the credentials needed to empty their bank accounts. There is also a change in scalability; while in principle monitoring on 0.01% and on 99.99% of the population may be equivalent, in practice a quantitative difference of so many orders of magnitude is quantitatively different. In the 1970s, trailing someone everywhere was so expensive large-scale monitoring was impossible, and rules to keep tabs on the impossible weren't needed. In the modern age, the costs have dropped to a fraction of a penny, but the protections against abuses haven't kept pace. Achieving a reasonable balance will be difficult.

FakeComments 8y ago
Aside from GPS logs, which of those things wouldn’t have been on your desk, when the police raided your home office for papers in the 1970s? The problem is with overly broad warrants, that allow for whole device imaging — though we sometimes see that with real warrants too, which just grab everything.

ohazi 8y ago

> An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password. I strongly disagree with this interpretation. It's an old argument, I follow the reasoning behind it (I actually think the author does a good job arguing in favor of this position), but at the end of the day I'm just too uncomfortable with how this would work in practice. During a normal search, they get a warrant, tell you to produce some documents, and if you don't comply then they go get the documents themselves. If they can't find the documents, then they can come back to you with obstruction or contempt charges, but this is the rare case. With passwords, the rare case becomes the common case. Enough people are going to suddenly "forget" their passwords that law enforcement and judges are going to roll their eyes and throw the book at anyone who actually forgets a password. I don't believe it's possible for anyone to prove that someone knows a password. People can forget at any time, for any number of reasons, including trauma. What's going to happen when police have evidence that I did, at one point, know the extra-super-secret password to some old confidential document that I set up a pgp key to encrypt and promptly forgot about? What about when my harebrained DIY deniable encryption scheme means that I genuinely don't know which of the following hundred-thousand files I know the password to, even though I obviously must know, because I set it up in the first place? There's no law against being a paranoid doofus.

mirimir 8y ago
Indeed, the article doesn't address the question of forgetting. And generally, it over-complicates things. Let's say that you don't know the password, and never did, because it's not your device. If ordered to decrypt, you just say: "I don't know the password." You don't plead the Fifth. Because you simply don't know the password, and the thought of self-incrimination would never occur to you. Now let's say that it's your device, and that you did know the password, at one time. But maybe only for a few seconds after you set it, and then forgot to write it down. Or maybe you did that intentionally, to nuke a device before resale. Or maybe you have honestly just forgotten it. I have one or two old drives around like that, so hey ;) Anyway, in that situation, you'd just say: "I've forgotten the password." But now, let's say that it's your device, and that you do in fact know the password. What do you say? If you plead the Fifth, that's basically an admission that you know the password. Because, as I've said, the thought of self-incrimination would have never occurred to you, if you didn't know it. So you don't do that. You just say that you've forgotten it. There are, I admit, some concerns with that approach. First, you're lying to an agent, and penalties for that can be extremely severe. So it's your call to make. Also, if an agent testifies that you were using the device when swatted, that claim may seem iffy. But if pleading the Fifth is no longer an option, what are the alternatives? You can at least claim trauma. And if you're old like me, a ministroke.
- pif 8y ago
  > But if pleading the Fifth is no longer an option, what are the alternatives? Simple: just give the password!
  - bepvte 8y ago
    But then the state has access to my linux iso collection....
  - Jotra7 8y ago
    Hey guy, do you like the taste of boots or are you naturally a lickspittle?
  - 8y ago

baybal2 8y ago

Author: Orin S. Kerr

swebs 8y ago
Am I supposed to know who that is?
- mirimir 8y ago
  If you follow this stuff, arguably yes.
  - snvzz 8y ago
    Why should I need prior knowledge to follow the conversation? Just describe who that is, and why it is relevant to mention it.
    - mirimir 8y ago
      I'd say that one needs prior knowledge to follow maybe 70% of HN posts. And some of it's quite arcane. I could have linked the Wikipedia article, but that's getting pretty close to LMGTFY, no?
- CompanionCuuube 8y ago
  Kerr is a law professor who not only has a career in prestigious institutions but also an engineering background.

nickdothutton 8y ago

There's no legal/moral/ethical silver bullet here.It's a difficult enough problem even without allowing for the possibility of a tyrannical/abusive state (which you could argue is a failure mode of a democracy, and is less rare than you think).

deleted 8y ago

[deleted]

dbg31415 8y ago

Encryption is a human right. We all agree that we shouldn't be compelled to testify against ourselves. Right? Ok... now let's think of Geordi La Forge. Were he to commit a crime, could the government compel him to produce encrypted recordings from his visor? And hopefully you'll come to the conclusion, "No, because that visor is part of him. He shouldn't have to give up his sight just to maintain his ability not to testify against himself." And from there it's just a few steps towards, "Yes, I do need my cell phone to be a productive human... and yes, tech I need to be a productive human should be covered under the same protections as I am." Plenty of other ways for cops to catch the bad guys.

pif 8y ago
> Encryption is a human right. Who said so? UN? Some Constitutions? Who?
- dbg31415 8y ago
  Most notably, Amnesty International. * Encryption: A Matter of Human Rights || https://www.amnestyusa.org/reports/encryption-a-matter-of-human-rights/ https://www.amnestyusa.org/reports/encryption-a-matter-of-hu...
  - CompelTechnic 8y ago
    I agree with the principal that encryption should be a human right, and I agree that I can construct thought experiments that "prove", or more correctly, show sound reasoning for, the principal. However, nation-states do not run off of principals. They run off of enough people agreeing on something that they get to decide what is right.
- eadmund 8y ago
  Well, I assert that encryption is a type of arms, and that it's the right of every free man (so, children/prisoners/&c. are excepted) to own, bear & use arms peaceably. In the U.S., one can make an argument that the Second Amendment protects the right to encryption. But even if no constitution or law in the world protects a right, it's still a right — just a right without legal recognition.

michaelmrose 8y ago

"This paper solely addresses the Fifth Amendment framework for compelling acts of decryption by entering passwords without disclosing it to the government. Compelled use of biometrics and compelled disclosure of passwords raise different Fifth Amendment issues." Are we to believe that typing it in the presence of officers of the court doesn't communicate the password to officers? This seems questionable. I'm sure judges love, technically we are violating your clients rights but as long as officer smith looks over that away we TECHNICALLY wont be. Further one can argue both having forgotten a password AND the fifth amendment. You can argue that the act of trying to unlock it is testimonial AND that you don't know the password. Prove them wrong. You could argue that the authorities have presented you with a device that has had the password changed. If they actually do this do they just get to lock you up for however long they feel like? It's probably true in many cases that you can establish that a device was used by a person, bought by a person, that that person PROBABLY knows the password. This isn't enough for it to be a foregone conclusion. This reads like complicated wishful thinking designed to relieve the prosecution of the burden of doing intelligent police work.

appleflaxen 8y ago
> You could argue that the authorities have presented you with a device that has had the password changed. If they actually do this do they just get to lock you up for however long they feel like? I am strongly against compelled decryption, but haven't come across this argument before. I think it's a brilliant point.
- nabla9 8y ago
  Argument that represents unlikely logical possibility rarely wins.
  - jamescostian 8y ago
    Except when fear comes into play. You might enjoy reading this: https://psychology.stackexchange.com/questions/9200/why-do-people-fear-statistically-unlikely-things https://psychology.stackexchange.com/questions/9200/why-do-p... In this particular case, there is a fear that one could get a severe sentence (e.g. capital punishment) without having even committed a crime, all due to the police changing their password. If a person is afraid enough of that (unlikely) potential outcome, they may ignore statistics all together and follow their fear. For more examples of how much people ignore probability, consider https://money.cnn.com/2017/08/24/news/economy/lottery-spending/index.html https://money.cnn.com/2017/08/24/news/economy/lottery-spendi... and https://www.quora.com/How-much-does-a-casino-make-daily https://www.quora.com/How-much-does-a-casino-make-daily

NoblePublius 8y ago

Passwords are keys. Providing a key to your safe is not self incrimination. The 5th is unquestionably specific to self incriminating testimony.

bcgraham 8y ago
Providing the combination to your safe seems like a closer analogy, and I believe it is protected from compulsion by the Fifth Amendment.
- ams6110 8y ago
  A safe can always be opened by force. An encrypted file cannot, assuming a suitably complex password.
  - philjohn 8y ago
    Until you get to an encrypted file that has such a complex password it would take all of the energy and longer than the heat death of the universe to compute, it's just that you can't open it by force within a suitable timeframe.
    - DuskStar 8y ago
      An encrypted file cannot, given P!=NP (and a host of other assumptions, but P!=NP is the foundation), be decrypted. So require proof that the file is not decryptable by other means before you can compel entering a password ;)
  - cvwright 8y ago
    So citizens are being asked to give up fundamental freedoms because law enforcement is failing to do its job?
- TheCondor 8y ago
  does the fifth guarantee some universal concept of mental privacy or does it prevent that information from being used in court? You can’t take the fifth before a grand jury. I think there is a certain presumption that the actors are gentlemen that the law assumes. If you feel really strongly about that sort of privacy, you’d be well served to not find yourself in a criminal court trial. There is both ambiguity and case law here.

lsiebert 8y ago

i don't understand how this can be an argument regarding the 5th amendment right against self incrimination if it doesn't address schmerber vs California (https://supreme.justia.com/cases/federal/us/384/757/ https://supreme.justia.com/cases/federal/us/384/757/) which found "Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds." I'm not an expert, but I'd note that Fisher Vs. United States which gets brought up several times was about the accused individual's lawyer producing documents the individual had given them. And a large part of the judgment in the case is the difference between ownership and possession (as seen in the decision of couch vs. united states which it relies on). In any case fisher said that you couldn't be compelled to testify to affirm the truth of the contents of the documents sought and that the password would decrypt them. But decrypting files is affirming a truth in the documents sought, as the government lacked testimony of their encrypted existence on that hard drive and of the passwords ability to unlock them.

BlackFly 8y ago

This interpretation of the right to remain silent frightens me. The example I was always given to point out the need of such a right is the police saying, "Alright, show us where you buried the body." And if they can "prove" that you buried the body but you cannot actually take them there because you didn't bury the body then you go to prison forever. The government should not have the power to go on a fishing expedition through my device. If the government can already prove that something illegal is on my device, then they do not need that thing in order to convict me of a crime. It is just superfluous to compel me to do things and it is dangerous.

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wolfgke 8y ago
> The example I was always given to point out the need of such a right is the police saying, "Alright, show us where you buried the body." And if they can "prove" that you buried the body but you cannot actually take them there because you didn't bury the body then you go to prison forever. I often say that Franz Kafka was not a littérateur, but a crown witness (he indeed studied law).
ben0x539 8y ago
I really sympathize with the desire to have my computing device extremely protected against scrutiny because I like to think of it as an extension of my own memory and cognitive ability etc and don't want to worry about maintaining an airgap between in-brain capacity and external capacity for liability reasons. However I am not very optimistic that this line of argument is going to fly. Why do you need to search my car for illegal drugs if you can't already prove that I have them? Why do you need insight into my finances if you can't already prove that I am evading taxes? As long as we, in principle, give the legal system a mandate to investigate crimes, there is always going to be a point where arguments around reasonable suspicions are going to prevail against privacy concerns. Ultimately I don't think it's realistic to hope to create a comfortable relationship with a malevolent judicial establishment by adding some hoop or other for them to jump through before they get to fuck you over.

jknz 8y ago

There may be technological solutions to this. Say your encrypted files need two secrets, one in your possession, one in possession of a third party. To decrypt your file, use your secret and ask the third party for their secret. To get their part of the secret, either call them or type a password or use some other private key. It can be automatic and fast. The role of the third party is to block the secret retrieval at any suspicion of law enforcement involvement. Second secret then cannot be retrieved and the files are safe. Also, if you type the wrong password, the third party blocks retrieval and will reactivate it after investigating whether you are in law enforcement company. Law enforcement may try to compel the third party to give the second secret. Having third party in another country, or multiple third parties in multiple countries may solve this. Another idea is that the third party is your lawyer. You shared that second secret with your lawyer and told him to stop sharing or destroy the second secret if you ever meet law enforcement. You get arrested, stay silent, your lawyer is called; before anything else the lawyer blocks retrieval of the second secret. This may be attorney/client privilege and would block law enforcement from compelling the lawyer to give the second secret. Add some randomness (retrieval of second secret gets blocked with probability 1/10 when the correct password is entered) to get plausible deniability. Some people could be interesting to pay Apple a lot to implement this. Or some law firms could start selling such lawyer phones. Edit: typos, last sentence

rlpb 8y ago
> Another idea is that the third party is your lawyer. Then that isn't your lawyer; rather your co-conspirator. I'm pretty sure that if you're in a conspiracy with your "lawyer", you'll be charged together and you'll need another actual lawyer to represent you.
commandlinefan 8y ago
That's called "key escrow" - they tried that with the Clipper chip back in the 90's. It was mostly rejected because nobody trusted the third parties - and in hindsight, they were correct not to.

handelaar 8y ago

A rare example of a document which you can tell is definitely mistaken without going any further than its title. US civics-class-takers will naturally remember learning about how the first ten amendments to the constitution are commonly referred to as the "Bill of Privileges".

pdpi 8y ago

A bit meta, but the abstract employs a very interesting rhetorical device: "An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password." On the surface it almost looks like it argues for the opposite position by using the "Always do A unless exceptional conditions are met" form, but then guts that by making the "exceptional" condition pretty damn trivial.

salawat 8y ago

The problem in my mind comes in when you look at what type of systemic abuse you enable by throwing "common sense" out the window. Suddenly, every chunk of 0's and 1's in the hands of an unscrupulous/ambitious/pressured prosecutor becomes a ticket to indefinite incarceration. For every criminal this practice may help collar, I see too much potential for and utility as a form of political and civic suppression. Someone being problematic? Have the geek find evidence of what might be an encrypted volume and order the problematic person to supply the keys to open it. Presto. Enjoy your time in the Klink. You can't let such harmful precedents stand. Heck, who is to say someone doesn't just write a worm to create small encrypted caches on everyone's machine? Does that then put everyone in a Spartacus situation? This is dangerous ground in which the courts are treading, and no less than 2 Constitutionally defined rights are in conflict. Personally, I prefer a system with maximum difficulty with regards to the cessation of Rights. A government empowered to ignore your Rights is well on the road to hell. There is a balance somewhere, but I am at a loss as to where it is at the moment. Where ever it is though, it isn't on indefinite cessation of freedoms just because the State has a hunch there might be something relevant they can't read.

mistercow 8y ago

This completely ignores one of the purposes of the Fifth Amendment, which is to remove the incentive for law enforcement to torture suspects for information. The fact that you know they have the password has no bearing on that.

jimison 8y ago

The paper is arguing FOR self-incrimination, not against it.

libeclipse 8y ago

I'd also recommend this other interesting read by the same author and co-authored by Bruce Schneier: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2938033 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2938033

LinuxBender 8y ago

This will be an unpopular opinion, but hopefully enough people were paying attention in school when they taught the concepts of mutually assured destruction. Hopefully a percentage of the population have time based countermeasures moving along in the event that the courts get too muddied by poorly defined laws, or laws with excessive intentional wiggle room for interpretation. I am probably fantasizing. It might explain why I enjoy dystopian films. My fantasy is that people will rise above a broken system rather than playing their game.

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bensonn 8y ago

These arguments almost always seem like encryption is about access to information but isn't encryption about understanding information? If they are asking for a key to decrypt then they already have access to the data. If you write a note nobody will ever have access to- say you slipped it onto Voyager 1, there would be no point in encrypting it. Encryption is to protect against (possibly) accessible data. Old-school though experiment- I encrypt all my paper notes using a simple substitution cipher. They seize my notes and have full physical access to them. If they don't understand my notes can I be forced to explain my cipher? If I comply and the unscrambled contents are "RedFalcon has delivered the ApplePie to the EndOfTheRainbow". This is basically another substitution cipher. Can I be forced to explain this under threat of jail if I don't explain it in a way they accept? I realize modern encryption is way beyond this, and way beyond my understanding. Has the basic principle of access vs understanding changed?

fandango 8y ago
Exactly. It'd like to make this analogy myself: Forcing somebody to decrypt a drive is like forcing somebody to keep rearranging a bunch of papers/notes (he or she supposedly produced) until a punishable offence is noticed. Are you not able to compose a satisfactory result? It's jail for you because you are hiding something.