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Legal yes, right no. In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidenc

Legal yes, right no. In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. It should be recognized as a basic right that you do not have to aid those who are trying to convict you of a crime. Our system of justice is adversarial for good reason and it is explicit in forcing those with the most power to limit the use of that power for the benefit of the accused. Without those checks and balances (and frequently even with them) abuse of that power, under the auspices of a greater good, would be common.

oarabbus_ 7y ago
>In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. If you have illegal materials in your home, and the cops present a warrant to search your house, should you have the right to shut the door and not let them in?
- rbritton 7y ago
  You should not be required to assist them. If they can get in on their own with a warrant, that's fair game.
  - oarabbus_ 7y ago
    An online persona soliciting child pornography has their IP traced to an individual with a criminal history, registered on a sexual offender database. The police have probable cause to believe this individual has and distributes child pornography. A judge signs a warrant to perform a forensic search of the individual's hard drive. The individual refuses. So then, it's just tough shit for the police right? Given that they can't get in on their own with a warrant.
- cannonedhamster 7y ago
  I mean, you've got the right to not answer the door. They just have the right to break the door down because of the lawful warrant. You don't have to help with your own incarceration, i.e. point out evidence they were unable to find, why would you be expected to do the same thing on their phone? Police can't force people to testify either. If your only evidence of a crime rests on the defendent's compliance you've got a poor case. If you can't tie an IP to a device on a specific date and time without forcing someone to open their own device and admit guilt and ownership, then you're really not trying hard enough. The only way that the police can prove who committed a crime on a cell phone that is encrypted is either admission of ownership or compulsion. Neither of which is evidence of a crime in and of itself. They would still have to prove that the person who owned the phone committed the crime, otherwise why have the burden of proof on the prosecutor? These aren't civil cases we're generally talking about where the evidence requirement is lighter these are criminal cases where, as far as I understand anyways, the burdens are much higher. Add to that a cell phone is essentially a tracking device. While your position is certainly a reasonable one to take, I don't think it truly encapsulates the intent of our court system as designed and in fact expressly works against innocent until proven guilty.
rayiner 7y ago
The law draws a distinction between being forced to testify against yourself (which essentially has you creating evidence to be used against you), and being forced to turn over evidence in your possession which may be used against you. The latter isn’t indicative of an abuse of of power. The pre-existing physical evidence is what it is, and proves what it proves. Your proposal is also unworkable. Should companies not be required to hand over corporate records, because those might implicate them in a crime? Should a murder suspect be allowed to deny police access to his shed, where the murder weapon might be hiding? A bedrock principle of law is that “the law is entitled to every man’s evidence.” The whole point of warrants is to reconcile that principle with private property—to create a structured way for police to access private property to get access to evidence. Your proposal isn’t a “check” or “balance”—it obliterates that principle. It allows wrongdoers to hide evidence of their crimes even against a valid warrant.
- Hupriene 7y ago
  While I generally agree with you, a court order to provide a password does bring with it a few problems. 1. Sometimes knowledge of the password itself could be considered testimonial. If there is doubt as to whether or not the an individual owns a particular computer, then being forced to provide the password is tantamount to being forced to concede ownership, which would violate protections against self incrimination. 2. People do legitimately forget passwords, and the courts have no way of distinguishing between people who have genuinely forgotten and those who falsely claim to have forgotten. Being subjected to indefinite detention for forgetting a password would violate due process, while keeping someone in jail until they comply with a legal warrant is legitimate. Since the court cannot distinguish between these two cases, any penalty the court may impose for contempt runs a variable (depending on the facts of the case) but non-zero risk of being a miscarriage of justice.
  - sevenf0ur 7y ago
    That second scenario has always fascinated me. What's the burden of proof for contempt of court? Forgetting a password seems plausible to me. Anyway, reminds me of this reddit post: https://www.reddit.com/r/IAmA/comments/afib1/truecrypt_and_the_fifth_amendment_saved_my_life/ https://www.reddit.com/r/IAmA/comments/afib1/truecrypt_and_t...
anigbrowl 7y ago
All true, but there are many downsides to the adversarial approach so we should consider exploring other types. The most obvious downside is an adversarial system police and the state will default to intimidation because that's the most effective tactic on most people. This manifests most perniciously in the case of plea bargains. Economic analysis of criminal justice has led to an approach of deliberately threatening people with wildly disproportionate sentences because it's a powerful incentive to plead guilty to lesser crimes and keep the costs of running a prosecutor's office down. It also promotes an unhealthy zero-sum approach to justice where in order for me to win you must lose. We're seeing now how things work out when that attitude shapes the cognition of national leaders. Most people think they can make a better adversarial system by tweaking this or that rule, but the unwanted outcomes are baked into the adversarial approach. What works between individual humans (more or less) doesn't translate well to conflicts between individual humans and collective entities which constitute facets of the state, bth because of the yawning asymmetries involved and because the state is necessarily and unavoidably schizoid due to the distributed nature of its consciousness and that of those who comprise its cellular elements.
fredgrott 7y ago
Legal not so solid...courts have previously held that private free speech is protected see encryption battles during the invention of RSA for the court cases...also noted in many of Lessig's books...if device has private info force them to get the warrant as than you have legal rights to have your case argued before a judge..cops are INVESTIGATORS and not trained to know the law..

oarabbus_ 7y ago

>In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. If you have illegal materials in your home, and the cops present a warrant to search your house, should you have the right to shut the door and not let them in?

rbritton 7y ago
You should not be required to assist them. If they can get in on their own with a warrant, that's fair game.
- oarabbus_ 7y ago
  An online persona soliciting child pornography has their IP traced to an individual with a criminal history, registered on a sexual offender database. The police have probable cause to believe this individual has and distributes child pornography. A judge signs a warrant to perform a forensic search of the individual's hard drive. The individual refuses. So then, it's just tough shit for the police right? Given that they can't get in on their own with a warrant.
cannonedhamster 7y ago
I mean, you've got the right to not answer the door. They just have the right to break the door down because of the lawful warrant. You don't have to help with your own incarceration, i.e. point out evidence they were unable to find, why would you be expected to do the same thing on their phone? Police can't force people to testify either. If your only evidence of a crime rests on the defendent's compliance you've got a poor case. If you can't tie an IP to a device on a specific date and time without forcing someone to open their own device and admit guilt and ownership, then you're really not trying hard enough. The only way that the police can prove who committed a crime on a cell phone that is encrypted is either admission of ownership or compulsion. Neither of which is evidence of a crime in and of itself. They would still have to prove that the person who owned the phone committed the crime, otherwise why have the burden of proof on the prosecutor? These aren't civil cases we're generally talking about where the evidence requirement is lighter these are criminal cases where, as far as I understand anyways, the burdens are much higher. Add to that a cell phone is essentially a tracking device. While your position is certainly a reasonable one to take, I don't think it truly encapsulates the intent of our court system as designed and in fact expressly works against innocent until proven guilty.

rayiner 7y ago

The law draws a distinction between being forced to testify against yourself (which essentially has you creating evidence to be used against you), and being forced to turn over evidence in your possession which may be used against you. The latter isn’t indicative of an abuse of of power. The pre-existing physical evidence is what it is, and proves what it proves. Your proposal is also unworkable. Should companies not be required to hand over corporate records, because those might implicate them in a crime? Should a murder suspect be allowed to deny police access to his shed, where the murder weapon might be hiding? A bedrock principle of law is that “the law is entitled to every man’s evidence.” The whole point of warrants is to reconcile that principle with private property—to create a structured way for police to access private property to get access to evidence. Your proposal isn’t a “check” or “balance”—it obliterates that principle. It allows wrongdoers to hide evidence of their crimes even against a valid warrant.

Hupriene 7y ago
While I generally agree with you, a court order to provide a password does bring with it a few problems. 1. Sometimes knowledge of the password itself could be considered testimonial. If there is doubt as to whether or not the an individual owns a particular computer, then being forced to provide the password is tantamount to being forced to concede ownership, which would violate protections against self incrimination. 2. People do legitimately forget passwords, and the courts have no way of distinguishing between people who have genuinely forgotten and those who falsely claim to have forgotten. Being subjected to indefinite detention for forgetting a password would violate due process, while keeping someone in jail until they comply with a legal warrant is legitimate. Since the court cannot distinguish between these two cases, any penalty the court may impose for contempt runs a variable (depending on the facts of the case) but non-zero risk of being a miscarriage of justice.
- sevenf0ur 7y ago
  That second scenario has always fascinated me. What's the burden of proof for contempt of court? Forgetting a password seems plausible to me. Anyway, reminds me of this reddit post: https://www.reddit.com/r/IAmA/comments/afib1/truecrypt_and_the_fifth_amendment_saved_my_life/ https://www.reddit.com/r/IAmA/comments/afib1/truecrypt_and_t...

anigbrowl 7y ago

All true, but there are many downsides to the adversarial approach so we should consider exploring other types. The most obvious downside is an adversarial system police and the state will default to intimidation because that's the most effective tactic on most people. This manifests most perniciously in the case of plea bargains. Economic analysis of criminal justice has led to an approach of deliberately threatening people with wildly disproportionate sentences because it's a powerful incentive to plead guilty to lesser crimes and keep the costs of running a prosecutor's office down. It also promotes an unhealthy zero-sum approach to justice where in order for me to win you must lose. We're seeing now how things work out when that attitude shapes the cognition of national leaders. Most people think they can make a better adversarial system by tweaking this or that rule, but the unwanted outcomes are baked into the adversarial approach. What works between individual humans (more or less) doesn't translate well to conflicts between individual humans and collective entities which constitute facets of the state, bth because of the yawning asymmetries involved and because the state is necessarily and unavoidably schizoid due to the distributed nature of its consciousness and that of those who comprise its cellular elements.

fredgrott 7y ago

Legal not so solid...courts have previously held that private free speech is protected see encryption battles during the invention of RSA for the court cases...also noted in many of Lessig's books...if device has private info force them to get the warrant as than you have legal rights to have your case argued before a judge..cops are INVESTIGATORS and not trained to know the law..