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Suppose you've been charged with a crime and the police have obtained a warrant to seize the contents of a safe you keep in your house. American courts have rul

by karzeem 15y ago

Suppose you've been charged with a crime and the police have obtained a warrant to seize the contents of a safe you keep in your house. American courts have ruled that the 5th Amendment does not protect you from being compelled to open the safe. That precedent doesn't bode well for this case. I don't see a qualitative difference between the contents of a safe and those of an encrypted drive. One workaround: fail-deadly. Automatically wipe the encrypted data if the password isn't entered every n days. With a small enough n, the courts can't move fast enough to get the data before it's gone. (Whether this scheme constitutes obstruction of justice, I have no idea.)

epochwolf 15y ago
> Whether this scheme constitutes obstruction of justice, I have no idea. Not a lawyer but... Courts seem to treat programs as proxies for their owners so if it's a program actively doing some kind of destruction then it probably would be. If you could ensure passively, that the data would become unusable after a certain time period it wouldn't. A physical example would be an briefcase rigged with small explosives. Opening it without the code or waiting to long to enter the code would trigger it to destroy the contents. I imagine this would be considered willful destruction of the contents. On the other hand, if the materials inside could decay into ash in a short time peroid, then it's not willful destruction.
- karzeem 15y ago
  That would probably be the best defense. If the destruction was carried out as part of a regularly scheduled program instead of as a specific response to law enforcement's demand for the data, you might be alright. Lots of companies automatically delete all email older than six months for this exact reason, actually.
lurchpop 15y ago
i think they could argue obstruction/destruction of evidence with the dead-man's switch thing. although a legit counter argument is the wipe is a general security measure to protect the data. if we saw phones as if they were our credit/debit cards that would be a perfectly reasonable security measure to prevent against theft.
SageRaven 15y ago
According to a post I read a while back on the Cybercrime Blog, you cannot prevent authorities from opening the safe or refuse to hand over a physical key (with a lawful warrant, at least), but you are under no obligation to provide a combination. I'm pretty sure the combination thing was SCOTUS precedent, but I'm not 100% certain.
tlb 15y ago
The difference is that any safe can be opened anyway in a few hours. A judge faced with a defendant unwilling to reveal the combination to a safe would figure he was just making things difficult, order a locksmith and find him in contempt. Requiring people to reveal safe combinations doesn't change their legal rights, it just saves time and mess. A properly encrypted disk is undecryptable by anyone, and owners have a genuine expectation of privacy for things on it. So revealing the key materially affects the evidence. It is clearly something the 5th amendment was meant to protect against.
- sliverstorm 15y ago
  Not true. A properly encrypted disk can be opened in a few thousand or million years. The judge can just order a decryption specialist and find the defendant in contempt. Unless you're saying it's about "how inconvenient" it is? Because there is no encryption on the planet that is 100% impossible to decrypt. I am perhaps being a bit snarky, but I think it's a valid question. You pose it like disk encryption is impenetrable, which it is not. Edit: normally I don't care about downvotes, but I would really like to know this time; why do you believe it not valid? I am interested in what you have to say.
  - deleted 15y ago
    [deleted]
  - gregschlom 15y ago
    I haven't downvoted you, but I think OP made a valid point highlighting how encryption differs from a safe, while you are, in my opinion, nitpicking on details. For the practical purposes of a trial, I believe a well encrypted drive is 100% impossible to decrypt, while a safe is relatively easy to open. Again, the point here is to assume good faith and think about a real situation, not if it's hypothetically possible to decrypt it.
    - ColinWright 15y ago
      > ... you are, in my opinion, nitpicking on details. Isn't that more-or-less the practical definition of what lawyers do? Isn't this more-or-less what the courts are for?
ldar15 15y ago
On the contrary. If the safe requires a combination, the higher courts have held that the 5th protects you from giving it up.
- logic 15y ago
  This is from the 5th Circuit Court of Appeals in Texas, and makes for interesting reading: http://ftp.resource.org/courts.gov/c/F3/272/272.F3d.748.00-51241.html http://ftp.resource.org/courts.gov/c/F3/272/272.F3d.748.00-5...
superuser2 15y ago
But you've handed them the data. You gave them (or let them take) the hard drive. You've opened the safe. Now they're expecting you to explain its contents and how they incriminate you. I am required to open my safe for you. I am not required to decode the encryption I perform by hand (or with my graphing calculator).

by karzeem 15y ago

epochwolf 15y ago

> Whether this scheme constitutes obstruction of justice, I have no idea. Not a lawyer but... Courts seem to treat programs as proxies for their owners so if it's a program actively doing some kind of destruction then it probably would be. If you could ensure passively, that the data would become unusable after a certain time period it wouldn't. A physical example would be an briefcase rigged with small explosives. Opening it without the code or waiting to long to enter the code would trigger it to destroy the contents. I imagine this would be considered willful destruction of the contents. On the other hand, if the materials inside could decay into ash in a short time peroid, then it's not willful destruction.

karzeem 15y ago
That would probably be the best defense. If the destruction was carried out as part of a regularly scheduled program instead of as a specific response to law enforcement's demand for the data, you might be alright. Lots of companies automatically delete all email older than six months for this exact reason, actually.

lurchpop 15y ago

i think they could argue obstruction/destruction of evidence with the dead-man's switch thing. although a legit counter argument is the wipe is a general security measure to protect the data. if we saw phones as if they were our credit/debit cards that would be a perfectly reasonable security measure to prevent against theft.

SageRaven 15y ago

According to a post I read a while back on the Cybercrime Blog, you cannot prevent authorities from opening the safe or refuse to hand over a physical key (with a lawful warrant, at least), but you are under no obligation to provide a combination. I'm pretty sure the combination thing was SCOTUS precedent, but I'm not 100% certain.

tlb 15y ago

The difference is that any safe can be opened anyway in a few hours. A judge faced with a defendant unwilling to reveal the combination to a safe would figure he was just making things difficult, order a locksmith and find him in contempt. Requiring people to reveal safe combinations doesn't change their legal rights, it just saves time and mess. A properly encrypted disk is undecryptable by anyone, and owners have a genuine expectation of privacy for things on it. So revealing the key materially affects the evidence. It is clearly something the 5th amendment was meant to protect against.

sliverstorm 15y ago
Not true. A properly encrypted disk can be opened in a few thousand or million years. The judge can just order a decryption specialist and find the defendant in contempt. Unless you're saying it's about "how inconvenient" it is? Because there is no encryption on the planet that is 100% impossible to decrypt. I am perhaps being a bit snarky, but I think it's a valid question. You pose it like disk encryption is impenetrable, which it is not. Edit: normally I don't care about downvotes, but I would really like to know this time; why do you believe it not valid? I am interested in what you have to say.
- deleted 15y ago
  [deleted]
- gregschlom 15y ago
  I haven't downvoted you, but I think OP made a valid point highlighting how encryption differs from a safe, while you are, in my opinion, nitpicking on details. For the practical purposes of a trial, I believe a well encrypted drive is 100% impossible to decrypt, while a safe is relatively easy to open. Again, the point here is to assume good faith and think about a real situation, not if it's hypothetically possible to decrypt it.
  - ColinWright 15y ago
    > ... you are, in my opinion, nitpicking on details. Isn't that more-or-less the practical definition of what lawyers do? Isn't this more-or-less what the courts are for?

ldar15 15y ago

On the contrary. If the safe requires a combination, the higher courts have held that the 5th protects you from giving it up.

logic 15y ago
This is from the 5th Circuit Court of Appeals in Texas, and makes for interesting reading: http://ftp.resource.org/courts.gov/c/F3/272/272.F3d.748.00-51241.html http://ftp.resource.org/courts.gov/c/F3/272/272.F3d.748.00-5...

superuser2 15y ago

But you've handed them the data. You gave them (or let them take) the hard drive. You've opened the safe. Now they're expecting you to explain its contents and how they incriminate you. I am required to open my safe for you. I am not required to decode the encryption I perform by hand (or with my graphing calculator).