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Court rules that people can't be locked up indefinitely for refusing to decrypt
- murftown 7y agoAs others have mentioned a lot of this boils down to the wording of the 5th amendment. Specifically: "...nor shall be compelled in any criminal case to be a witness against himself...". I recently found out that, for example, the Texas Bill of Rights [1] has stronger wording that addresses this. From section 10: "...He shall not be compelled to give evidence against himself...". 1. https://statutes.capitol.texas.gov/SOTWDocs/CN/htm/CN.1.htm https://statutes.capitol.texas.gov/SOTWDocs/CN/htm/CN.1.htm
- Supermancho 7y agoI wish people would stop linking to Tech Dirt, when there are alternatives (https://arstechnica.com/tech-policy/2020/02/man-who-refused-to-decrypt-hard-drives-is-free-after-four-years-in-jail/ https://arstechnica.com/tech-policy/2020/02/man-who-refused-...). Tech Dirt is a self-proclaimed rumor mill site, similar to the The Sun.
- danso 7y agoI don’t typically goto TechDirt if I can find an original source (that isn’t hard paywalled or 50% video ads), but in this case, the writing and reporting was fine and the original court doc is included. Also, the Ars story you provide links to the TechDirt story in its opening sentence.
- annoyingnoob 7y agoI've always thought that TechDirt should be named The Daily Outrage with the tag line A Place for Clicks.
- etrabroline 7y agoAdvocacy groups wear their bias on their chests proudly. "Neutral" news purveyors hide their bias behind misleading headlines and selective reporting. I would much prefer to read about something related to digital privacy in Tech Dirt. Not that I have anything against arstechniaca in particular. Can you link me to an example of a false rumor Tech Dirt has spread? EDIT: As danso points out, this issue probably wouldn't even have been reported by ars if Tech Dirt hadn't done the actual work of digging up the court documents, so complaining about the admittedly outraged tone of their articles is just petty.
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- mantap 7y agoFunny, I much prefer the journalistic style of Tech Dirt, who at least bother to cite and quote from their primary sources. Comparing it to a former porn magazine is unfair.
- Causality1 7y agoA surprising but welcome ruling. This case is yet another example of the government using the repugnancy of a crime to attack fundamental rights. It's happened before, it's happening now, and it will happen again.
- 1000units 7y agoAlleged crime. And this is braindead simple application of the Fifth Amendment. The courts are a joke.
- gamblor956 7y agoThis is not braindead simple 5th amendment stuff. Among the unsettled the questions in this case: (1) is providing a decryption key a testimonial act? (2) are the contents of the drives would constitute testimony protected by the 5th Amendment? Courts have come to different conclusions on both questions. Experts disagree on both questions. Even the precursor question (is requiring a defendant to provide the combination for a safe subject to the 5th Amendment?) is unsettled. The court in this case came down on the side of treating the decryption key as a testimonial act, but avoided dealing with the 5th Amendment issues.
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- 1000units 7y ago(1) is obviously true. Nobody can dispute this in good faith, even if the jurisprudence is hard to settle among bad actors. Prosecutors are simply upset technology makes the 5th powerful. (2) is obviously false. You can't get to it without testimony, though, so too bad. This is the intention of the 5th. The court avoided the 5th Amendment issues because, again, the courts are a joke.
- gamblor956 7y ago(1) is not obviously true. Even judges known to favor defendant's rights can't agree whether this would constitute a testimonial act. Claiming otherwise suggests that you don't understand how the law works, how the technology works, or both. (2) is not obviously false, because you're conflating two separate things: the encryption key and the contents of the encrypted device. Using the analogy of a locked safe: a picture taken by the defendant, for example, would be testimonial, but a picture taken by a third party would not. There's no way to know without actually reviewing the contents. If you have a simplistic understanding of the law, it's easy to make black and white statements. But the law is not deterministic code, and has never worked that way.
- p1necone 7y agoIdea: write malware that drops random data/encrypted files on the infected devices drive but is otherwise harmless, distribute widely. Bam! Plausible deniability for everyone.
- zzo38computer 7y agoMalware? Include with the operating system, to use the unused part (which might be all of it) of the encrypted partition for random data. Anyone who has no encrypted files, will not know the password to decrypt it, because there isn't any.
- amelius 7y agoAlternatively, the rule becomes: secure your computer, or end up in jail.
- hedora 7y agoWe sort of already have this, since stegfs provides an existence proof: https://en.m.wikipedia.org/wiki/StegFS https://en.m.wikipedia.org/wiki/StegFS
- Buttons840 7y agoOne problem with this is even after fully cooperating, the prosecution can still claim you're hiding more.
- ereyes01 7y ago> The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes. It sounds like this ruling is more against indefinite detention than a ruling that allows you to invoke the 5th before handing over your passwords. The quoted text above [1] tells me that the courts have thus far not recognized any right to keep your data encrypted against the wishes of law enforcement. Maybe it means they can only lock you up for 18 months, but I don't see how this changes things appreciably. I guess if the crime you're accused of carries a sentence worse than 18 months, it might be worthwhile, but who knows... [1] https://arstechnica.com/tech-policy/2020/02/man-who-refused-to-decrypt-hard-drives-is-free-after-four-years-in-jail/ https://arstechnica.com/tech-policy/2020/02/man-who-refused-...
- 1000units 7y agoMy most important passphrases are very complicated, and I lose the ability to reproduce them from muscle memory (the only place they exist) after a few days of non-use. How can you prove passphrases are remembered?
- gamblor956 7y agoThey don't have to prove that you remember the passphrases. They just have to show that the encrypted devices/partitions/whatever were in your custody at the time of encryption. Then you have to (a) show why you weren't the one to encrypt the devices or (b) make a 5th Amendment argument about why you don't have to turn over the encryption key during which time you may be incarcerated. "I forgot" is generally not a valid defense.
- Forbo 7y ago
- Hnrobert42 7y agoAccording to this article, the court can’t seem to understand why the prosecution is going to such lengths to compel production of password. Is they court willfully ignorant or is the article misleading? It seems pretty clear the prosecution was trying to use this case to set a precedent that not producing a password means you stay in jail forever. That the accused is all but convicted for child porn makes it easy, from a PR standpoint, for the prosecution to play hardball. If it was a journalist or a whistleblower, amicus curae brief would be stacked to the rafters.
- anonsivalley652 7y agoA minor miracle, while Chelsea Manning still rots in Alexandria City Jail for not cooperating with the political persecution of Assange.
- jessaustin 7y agoIt's so great, that Obama "commuted her sentence". Clearly that was a meaningful action that significantly affected something.
- favorited 7y agoHe commuted her sentence for a different crime. He didn't give her a pass to commit contempt going forward.
- Dylan16807 7y agoA different crime based on the same original actions. It's way too close to double jeopardy for my liking.
- fit2rule 7y agoThe jury is still out on that one. In the meantime, she is being illegally held.
- jessaustin 7y agoIf he hadn't commuted that sentence, how would they be pressuring her to lie about Assange right now? They tortured her for years. There's not much they could have done to escalate from that.
- mrtweetyhack 7y agoEither you have proof or you don't. Period.
- tylorr 7y agoIf your password itself was an admission of guilt then would that count as testimony and protected under the Fifth Amendment?
- nneonneo 7y agoIf you pleaded the fifth on your password, the court might be able to compel you to enter the password such that they don’t get the password but do get the data. The next question is, if doing so immediately decrypts a file (e.g. a text file) which is a direct admission of guilt, can you plead the fifth against the decryption process itself, esp. if the government isn’t already aware that such a “guilt declaration” exists?
- OrgNet 7y agoso they can keep you 4 years if they have nothing on you? > Man Who Refused To Decrypt Hard Drives Is Free After Four Years In Jail
- hedora 7y agoI wonder if it is possible to get the charges dropped because he was denied the right to a speedy trial. The government’s behavior on this is reprehensible, and, frankly, I’m more worried about abusive prosecutors than pedophiles.
- ineedasername 7y agoThere's a certain irony in the coincidence of the defendant's name being "Rawls", who was a political philosopher [0] that sought to define what "justice" should be within political society... his work "Justice as Fairness" "describes a society of free citizens holding equal basic rights and cooperating within an egalitarian economic system." [0] https://plato.stanford.edu/entries/rawls/ https://plato.stanford.edu/entries/rawls/
- supernova87a 7y agoThe problem with this new territory is exactly the unsettled issue of whether providing a password is testimonial and protected. The protection against self-incrimination is/was a protection against being put on trial and being forced to say or give testimony that you took part in or committed a crime. It is not a protection against any and all evidence from being produced against you. In a previous age, not saying words was enough protection, because evidence was usually physical (objects). The novel problem now is that the types of evidence being protected by passwords (and the method of protection) now are so closely linked that it's quite difficult to say whether being compelled to reveal a password is testimonial. Suppose a suspect murdered someone and was seen putting the weapon in a safe, where the combination was known to be written in a person's private papers. Those papers could be compelled to be revealed without jeopardizing privilege because the discovery of the combination is not forcing a person to testify. Even compelling the person to reveal the combination might not be testimony. And in any case, the safe could be opened with much effort and a blowtorch. But now, the safe can never be cracked, and the person's knowledge of the password is the only thing that will open it. The person revealing the password will surely confirm his/her guilt, so it now feels very much like the info/knowledge is self-incriminating testimony. Modern problems. They need some court resolution at a high level.
- tantalor 7y agoIt's not a modern problem. You could always rig a tamper-proof device (eg booby trap) to destroy evidence if forced without the key.
- banana_smoothie 7y agoWhile true, this is also a much more modern problem than the authors of the US constitution were subject to. If you stab people, you can wipe the blood off the knife. If you shoot someone, there was not a way to associate a projectile with a firearm. (Assuming the dubious merits of "firearm forensics".) Back in the good ol' 1780s, there's no presecutorial evidence to be gained by inspecting my safe because you cannot show that the knife/gun inside was the murder weapon.
- 7y ago
- VectorLock 7y agoWhat about if your password itself is an admission of committing a crime? Like your pass phrase is "IMurderedJeffreyEpstein"
- arthurofcharn 7y ago"I can't, your honor, the password itself is a confession." Is now my newest password.
- slipheen 7y agoIn the past, they've offered to exclude the contents of the password from the trial to answer that.
- nwallin 7y agoThe idea of being locked up for not handing over a password terrifies me. I was deployed a few years ago and living in the conexes. I was bored and decided to go all out on encrypting everything. I picked a completely random 16 character password (I piped the output from /Dev/urandom through some tr command that only allowed typeable characters through) and committed it to muscle memory. I used this laptop every day for about a month before I went home. I took about a one week vacation midway home. With the break and change in surroundings I completely forgot the password. No idea what it was. I tried for about a week before I have up and reformated it. I don't encrypt my computer any more. That's a crime they can lock you up for life for? Crazy talk.
- donny2018 7y agoMy understanding is that if there is evidence that you were committing crimes with connection to this encrypted data, there is a problem for you. Otherwise, this is not a problem.
- ClumsyPilot 7y agoEvidence which could be spurious, arising of actions of an unrelated third party.
- Nasrudith 7y agoThat sounds like a very dangerous assumption. You don't get to decide that you have nothing to hide. They do.
- sjy 7y agoIt is not a crime if, as a matter of fact, you forgot the password. As always, it’s up to the court to decide that fact after looking at the evidence.
- akersten 7y agoHow could a court possibly correctly deduce whether someone has forgotten a password? They can't. That's why we have to say that you cannot be compelled to produce a password, because the alternative is that you go to jail for forgetting.
- classified 7y agoCame there to read the article, then saw their informed consent form. By far the best one I've seen up to now, my commendation for that.
- jamisteven 7y agoSo 365 days or so, just not indefinite.
- asymmetric 7y agomods: can we edit the title to mention that this is about the US? US law != global law.
- onetimemanytime 7y ago>>Since that day, more than four years ago, Rawls has been held in federal custody. Rawls seeks release arguing that 28 U.S.C. § 1826 limits his maximum permissible confinement for civil contempt to 18 months. This much jail times ruins almost everyone, think of the mess it makes in your life /job/relationship /fiances. But I guess it beats doing xx years if you provide the passwords and evidence found there is used.
- blofeld 7y agoWhat if you testified that you forgot the password (if password was used). Unbelievable it might seem, let’s say you set up the passwd 1 week before the deed, it is a possibility and IMO they would have to prove otherwise (+ good luck with the decrypting)
- tsukurimashou 7y agoHow can they prove that the person didn't forget the password / no longer has access to it? I'm pretty careful with that stuff but still it happened to me before.
- itchyjunk 7y agoMaybe in this case, it is somehow clear that there is encrypted stuff and the government is also sure who can decrypt it (who owns the key to decrypt it.) But since a variety of Deniable encryption[0] exits, what happens when they think there is something to decrypt when there isn't? Or when they can't prove it but they want to believe there is something there? [0] https://en.wikipedia.org/wiki/Deniable_encryption https://en.wikipedia.org/wiki/Deniable_encryption
- bougiefever 7y agoIt's no mistake that they select the most unsympathetic people to try to weaken the protections for us all.