57 ms·

US Appeals Court: Forced Decryption Is Self-Incrimination

518 points by zach 15y ago

rosser 15y ago
Am I correctly understanding this decision to mean that, if the government already knows there's incriminating data on the drive, a compelled decryption would not be testimonial (as in the referenced cases from the 5th Circuit); but that the gov't can't compel decryption in order to go on a "fishing expedition", as any evidence found would be self-incriminating, and thus incur 5th Amendment protection? If so, that sounds spot-on correct to my (admittedly, lay and NAL) understanding of the issues.
- jrockway 15y ago
  I take a slightly different view in that one should never have to cooperate in any way in his own prosecution. Except for computers, nothing else is mandatory; if you refuse to be arrested, the cops will taze you (bro), if you go on a hunger strike in prison, the guards will tie you down and feed you through a tube, and so on. With all that as context, it seems absurd that you should have to type your innermost thoughts into a laptop so that the government can send you to jail.
  - cstejerean 15y ago
    If you consider "resisting arrest => getting tazed", and "hunger strike => force feeding" as acceptable consequences for refusing to cooperate then "refuse to provide password => held in contempt of court" is always going to be an option for you.
    - true_religion 15y ago
      In the first two examples, they gain your cooperation without your will. When you are held in contempt, you still have to agree to cooperate to escape it.
      - rdtsc 15y ago
        worst case => you forget your password, now you can just be held in jail for life if judges don't believe you.
  - rosser 15y ago
    There's a vast difference between not cooperating and actively impeding. Destruction of inculpatory evidence, for example, is a crime, even if, by some definitions, destroying the evidence could be termed "not cooperating." That's why, IMO, the court makes a distinction between compulsory decryption of a drive which the prosecution already knows to contain incriminating data (which isn't testimonial, and hence not subject to 5th Amendment protection), versus being compelled to decrypt a drive because the government thinks it's likely to find incriminating evidence on it. Actively impeding the prosecution, in the form of refusing to decrypt a drive known to contain inculpatory evidence, is in many ways tantamount to destroying that evidence. (Assuming, of course, reasonably secure encryption technology, &c.) You're not incriminating yourself by giving them the plaintext; they already know you have it, whether through confession, third party testimony, or some other means. What the court is saying here, OTOH, is that it would be testimonial, and hence subject to 5th Amendment protection, for you to decrypt a drive the prosecution merely suspects to contain inculpatory evidence, however strong their argument for suspecting such evidence to exist (and they'll have much better arguments than, "Well, drive is big enough to hold millions of files..."). If they were to find any such evidence, they'd have found it through compelling you to provide it to them, and that's the thing they're saying is counter to the 5th Amendment — that, in providing them with evidence they didn't already specifically know to exist, you've incriminated yourself.
    - rurounijones 15y ago
      Honest question here: From a legal standpoint how can the" prosecution already knows [the harddisk] to contain incriminating data" if the drive is encrypted? Are eyewitnesses saying "I saw him type the death list into his laptop" good enough? What is the criteria to meet that point?
      - elithrar 15y ago
        > Honest question here: From a legal standpoint how can the" prosecution already knows [the harddisk] to contain incriminating data" if the drive is encrypted? In many cases they can have intercepts, or bugs (cameras), but they are often not enough to form a water-tight case. They can therefore "know" you have incriminating data on your drive (or at least they will argue that point).
macrael 15y ago
The analogy to a combination for a safe seems very apt, I've forgotten: what is the precedent in such situations? Have people been forced to give up the combination for a safe in court before?
- deleted 15y ago
  [deleted]
  - elithrar 15y ago
    > With a safe, however, the government does have the recourse of breaking out a blowtorch and cutting the safe open (which has been done in order to circumvent the 5th Amendment issues of compelling a suspect or defendant to open the combination lock). It's also worth adding that a safe can be forced open physically within a reasonable amount of time. A drive, encrypted properly, may not be able to be decrypted our lifetime, and this is what leads law enforcement to attempt to 'force' the suspect to provide the key themselves.
    - jrockway 15y ago
      How long does my safe have to be uncrackable in order for me to have to open it to incriminate myself? I personally have no ability to crack a safe, and that makes all safes out of reach to someone at my skill level. If I'm all the police have to crack your safe, do you have to incriminate yourself? If not, then what level of competence do the police have to demonstrate? Full-disk encryption is theoretically strong, but actual implementations are not likely to be as secure. If you tasked the world's best cryptographers with getting data off an encrypted computer and gave them five years, I bet you'd get the data. And I'm pretty sure that the Constitution doesn't say: "No person shall be compelled in any criminal case to be a witness against himself, unless the government is to cheap to do a proper investigation."
      - sliverstorm 15y ago
        See shingen's comment
shingen 15y ago
I guess it's better late than never. A critical finding.
darxius 15y ago
In plain English: Does this mean an encrypted hard drive CANNOT be decrypted by law enforcement and the contents of the drive cannot be used in court to convict?
- elithrar 15y ago
  > In plain English: Does this mean an encrypted hard drive CANNOT be decrypted by law enforcement and the contents of the drive cannot be used in court to convict? Not exactly. It means that the defendant does not (currently) have to provide the decryption key in cases where law enforcement has had no luck accessing the volume via other means. Not all encryption schemes are created equal, and in many cases, law enforcement will attempt to circumvent or retrieve the key otherwise (i.e. volatile memory, disk controllers, etc).
  - darxius 15y ago
    So a sufficiently strong method of encryption (one that is proven to be not time or resource efficient) is enough to protect your hard drive from law enforcement eyes?
    - ubernostrum 15y ago
      Well, from reading the opinion it seems that one important factor was that basically the government's position was "we don't know if there's hidden encrypted data here, and if there is we don't know if that data is relevant to the case". So keep that in mind when interpreting this.
      - dedward 15y ago
        even further, the prosecution has not indicicated a specific file or location he expects to find, based on other evidence, on the drive.... and the court is deciding that amounts to a fishing expedition. they want to see his decrypted drive because it might contain evidence... not because they are very certain it had a key piece. even more important, although brief, is that by decrypting the drive the defendant would be automatically admitting he had control over the drive and its contents... something otherwise arguable on an unenecrypted drive, meaning he woud be testifying against himself for any illegal material found, even. if unrelated to thecase.
ChuckMcM 15y ago
Wow I think they got one right. It will be interesting to see how the government continues. Since currently its only a decision in the 11th circuit. If the government appeals, it goes to the supremes and if they hold that its a violation of your fifth amendment then everyone in the country gets to claim the fifth rather than give up the key. While I hate evil doers just as much as the next person I dislike the loss of civil liberties even more.
- turing 15y ago
  Well, not everyone. There are still situations in which the decryption would not be testimonial in nature and would thus not be privileged.
  - mbateman 15y ago
    Or situations in which the data wouldn't incriminate the owner of the data but rather someone else, etc.
    - electromagnetic 15y ago
      Still, handing over the data would require the government agreeing that they wouldn't mine the data to find a prosecution against you, which is likely what companies already do.
jrs235 15y ago
If they don't have a case without the contents on the drive then they don't have a case! I scoff at the prosecutors that claim "but if we can't get the encrypted contents then criminals will get away!" Hey dipsticks! Maybe you should collect other evidence and maybe make sure you build up a case that doesn't strictly rely on the contents of a hard drive that you don't even have possession of. Okay, so lets say you get the drive decrpyted... how you gonna prove who/how the contents got on the drive?
- elithrar 15y ago
  > how you gonna prove who/how the contents got on the drive? There's no such thing as 100% proof. It's about being "beyond reasonable doubt", and as 'weaselly' as that might sound, it's true. If they intercept data coming over the wire, to your PC, and you have been the only person home and the chances that someone would plant a few terabytes of illegal data on your drive at those precise times...
- smsm42 15y ago
  Well, that's exactly the point of the case - if the defendant decrypts it, by that fact he proves he knew the password - meaning, he is the owner of the drive and had control over it. Giving by that to the police proof of both that the content was illegal and that he owned it. Unfortunately for them (but fortunately for the defendant) the court did not go their way.
- jrs235 15y ago
  Okay, given this some more that. In the case of US vs Fricosu, merely having the documents the government says exist on the encrypted drive does not in itself constitute a crime (like child pornography would/does in the case mentioned in this story). So, if we take a step back and ignore that the person who holds the key to the "safe" (the decryption key to the hard drive) is the defendant and pretend it is you or I that hold the key, then you and I could be compelled to decrypt the drive and disclose its contents or face contempt of court. Now if I was forced by the court to decrypt the drive,prior to doing so I would ask (and require) immunity from any and all evidence found that would/could incriminate me. It also appears the government is aware of a document or documents that exist and have certain contents... this is all they have a warrant for and are asking for. Change the scenario. The police have reason to believe that there is a gun in a safe that I own that was used in a murder. The have enough evidence to obtain a search warrant and compel me to open the safe. I didn't commit the murder but supposed someone else did. The force compels me to open my safe. Me owning the safe or the gun in itself is not a crime and is not incriminating. Perhaps I have a stash of drugs in my safe too. Prior to opening the safe I will ask for (and require) immunity for any crimes that stem from obtaining or finding any other evidence not listed on their search warrant. I'm sure there will be some back and forth on this as to limit what degree of immunity I actually receive... but believe you me, I will make certain any thing related to the drugs I know exist in there which is completely unrelated to searching for and obtaining a gun. Nothing wring with being compelled to opening the safe. Take the above scenario with one small change I (or you) the owner of the safe (that contains the gun, or so the government believes) is person accused of the murder. I will still ask for and go after immunity for anything not related to the current case. Owning the safe, and the gun, in itself is not a crime so unlocking the safe and allowing for the search is not incriminating in itself. The government still needs to build a case that I pulled the trigger on the gun and murdered someone (not that I merely knew that I had A gun or that I possessed a gun that I didn't know was used in the commission of a crime). The sticky point is, how can the government prove that a person knows the combination to a safe (or decryption key for a hard drive)? This is what the judge and court is trying to determine in the Fricosu case. Can she and does she know the key? And if she refuses to unlock it or says she doesn't know how can they "prove" she's lying?
ctdonath 15y ago
Two analogies I use: rag doll and sawz-all. Rag doll: so long as they can manipulate your uncooperative unresisting body to do something (apply thumbprint, get DNA sample), they can order you to cooperate. They cannot, however, compel you to do something which they otherwise have no case without. Sawz-all: so long as getting into a safe (or whatever) is just a normal matter of time and money, they can order you to open it. If, however, "opening" an encrypted volume or some such by brute force will take something on the order of heat death of the universe, and otherwise they have no case, you can stay silent.
- monochromatic 15y ago
  Those analogies are only useful to the extent they agree with the law. Otherwise they're just arbitrary.
  - erichocean 15y ago
    As if the law isn't arbitrary! Both are arbitrary, and both might be reasonable.
    - JeremyBanks 15y ago
      He didn't say "reasonable", he said "useful".
- derekp7 15y ago
  If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents? To me, the hard drive platter is the paper, whereas the encrypted data is the contents of the papers.
  - andylei 15y ago
    > If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents? under some circumstances, they could. the "foregone conclusions" doctrine says that if they know 1) what the contents say, 2) that those contents are incriminating, 3) that you can translate it, and 4) can prove 1-3, then yes, then can compel you to do translate / decrypt.
newbusox 15y ago
Realize that this is a fairly narrow opinion, and, in my opinion, not a particularly well-reasoned one. The issue here is child pornography: the would-be defendant was suspected of having child pornography on various hard drives which were encrypted. The court states that the actual contents of the hard drive are themselves not testimonial—that is, they are not covered by the Fifth Amendment and, if the government had access to the hard drives, they could present whatever was incriminating on them into evidence. So the issue is whether the act of producing the documents is a testimonial act and therefore covered by the Fifth Amendment The court concludes that the act of production is a testimonial act because, one, the testimony was not a "foregone conclusion." This holding is based on a case called Fisher v. United States, in which the Supreme Court stated that it was not testimonial to hand over certain papers that might have incriminating evidence because conceding that documents existed, that you had control over the documents, or that they were in your possession was not incriminatory given the circumstances of that case. Under the "foregone conclusion" doctrine, the government knew of the existence and location of these papers so the production of the papers added nothing or little to the government's information. If the government did NOT know that documents existed, they could not compel a would-be defendant to reveal the documents. Second, and most importantly, the court concluded that decrypting the documents would "use the contents of [the would-be defendant]'s mind" because "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." It's again important to note that this is a child pornography case: possession of child pornography is a crime, so if the would-be defendant here provided a decryption key, this would be tantamount to him admitting that he possessed the hard drive and had access to the files within it—that alone would constitute a crime if the files were found to be child pornography. This is therefore what the court later refers to as an "implied factual statement" and the Fifth Amendment protects this. Although the court also suggests that providing a decryption key might be like providing a combination (and therefore be admissible for Fifth Amendment protection on other grounds), it unfortunately devotes very little space to this discussion—and this seems to be the really big issue here. The case therefore leaves several unanswered questions: this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer? What if the foregone conclusion doctrine wasn't applicable—would the conclusion here be the same (most of the opinion is actually devoted to this discussion, which is less broadly applicable because, if the police know of the existence of specific files on hard drive, this doctrine is inapplicable)? Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system. In conclusion: the applicability of this case to future cases is unclear, so, for those that want this result, I don't really think this is a "slam dunk." There will likely be many future cases further developing this doctrine. As such, right now, it's very difficult to discuss the merits of the court's holding on the "decryption is testimony" argument (which, in my mind, is the most important) in a general sense, since the reasoning here seems very specific to the facts of case.
joering2 15y ago
this is the key to this case and reasonings behind such a response from court: > The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents. Government had inexperienced prosecutor building case and the judge, rightfully responded to prosecutor request: in order to get the content that prosecutor wants, they need keys. By not revealing keys defendant is using 5th. Everything seems fine, other than I am sure this case will come back and this time prosecutor will wont the keys not the content. This mistake, I think rest assured, will not happen from Prosecutor's part again in this or any other cases. --- below is what I started typing but when I read the case again it stroked me as of why we dealing with such a decision. I decided to leave it instead of deleting if you want to read anyways: First and foremost: I use TrueCrypt. Its amazing, simple, and it works. Just make sure, when converting existing partition, you use at least "3-pass wipe" mode since todays hard disk drives can keep "second layer" of magnetized data you were converting for months giving law enforcement access to your pure data pre-endryption. In my example, I have about 10TB across 8 HDD with my CAD/3DStudio Max work. I also have hours of digital-cam material from 2003 where 15 minutes of recording took 2TB of avi files and I never cared to convert. Said that, I think in this case the court was terribly wrong and defendant should play lottery first thing he leaves the jail. > First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind say what? they asked him for password he knows. He doesnt want to give it out. Court agrees saying that this would require to force defendant to use his mind and reveal information he keeps there and that noone else can access. May I know any court case or any case where defendant brain would not be used?? I dont honestly find a difference between asking him for password and asking him for anything else in any case proceedings. He is unwilling to comply with court, bottom line. > Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all. sure, but if the Government has any other evidence against defendant, the burden of proof should clearly shift to defendant. If, for example Government has ISP logs of tons of torrent data downloaded by defendant router, one can fairly assume that illegal files are stored there. If defendent is not willing to "open the safe" by releasing the key, he should be found guilty by withholding the evidence. -- Just open the damn vault and show those idiots from the Govt & Co how stupid they really are!
- 15y ago
jakeonthemove 15y ago
Yes! There are still smart people in the justice system who will make the right decision no matter who they're pissing off. My hat's off to you, Judge Tjoflat! P.S. More people should know about this decision and the judges!
wladimir 15y ago
I've always wondered this about forced decryption: what if you have large random files on your harddrive? (irrelevant how they got there -- you may not even know) For all intents or purposes these look like encrypted data, and if they could force you to "decrypt" them you have a problem of Kafkaesque proportions. Is there any rule that data on your drive should be somehow sensible and decryptable to human-understandable information, using keys that you have in your head?
- DanBC 15y ago
  People wanting to use encrypted volumes; or encrypted drives; or who delete individual files; or who wipes discs[1] often use writes of random data to 'sanitise' the drive before writing their data. Thus, they're likely to have lots of random data strewn around their drives. I have no idea what would happen if you coughed up two keys which unencrypted 30% of that random data; what would happen with the rest?
DanBC 15y ago
Can't the investigators get a warrant to spy on the suspect? They then install a bunch of spyware on the machine and in the suspect's home and on the suspect's internet connection.
- AndrewDucker 15y ago
  If I was that suspect then I would never, ever, use that computer again.
  - DanBC 15y ago
    For sure. There are other measures the suspect could have taken; store everything on an always encrypted micro-SD, which is tiny enough to be easily destroyed. Actually: Has anyone done any research about the risks of "super microscopes and Flash memory"? There's a theoretical risk with conventional platters. I don't know how big one bit is on a conventional drive, and I don't know how big one bit is on a, say, 8GB micro-sd card.
    - burgerbrain 15y ago
      What are they going to do, read the encrypted data off the flash drive the hard way?
      - DanBC 15y ago
        I stress this is just me noodling around, and that I'm not talking about real world risks. But: Is it possible to read unencrypted data of the flash drive the hard way? Obviously, if it's sensibly encrypted there's no point. But a person may think they have physically destroyed a flash drive only to have left information available. Here's some links to DIY de-capping and microscopy of a variety of ICs: (http://siliconexposed.blogspot.com/2011/03/microchip-pic12f683-teardown.html http://siliconexposed.blogspot.com/2011/03/microchip-pic12f6...) (http://uvicrec.blogspot.com/ http://uvicrec.blogspot.com/) (http://dangerousprototypes.com/2011/06/27/hacking-the-pic-18f1320/ http://dangerousprototypes.com/2011/06/27/hacking-the-pic-18...)
Intermernet 15y ago
I wonder if evidence acquired by brute force decryption is admissible?
- dedward 15y ago
  Sure, if the seizure of the laptop as evidence was legal and all that, of course it would be. The issue is the defendants rights and responsibilities in helping them figure that out.
aperrien 15y ago
I have some definite concerns with this. If producing the key via government coercion is legal, where do we stop? Right now, we have (admittedly) very crude technology that lets us probe the brain and tell with a reasonable certainty if someone is lying. It may be possible to produce a machine in the future that can analyze the mind well enough that it will be possible to tell what words a person is thinking. If that's the case, would it be legal to require the accused to be subject to such a machine to reveal their password? If that is the case, will the government need the accused's testimony at all? Further along that line of thinking, it may become possible to change what a person is thinking by suppressing or exciting different regions within the brain. At that point, is punishment still legal if the government can simply change what a perpetrator thinks? For example, changing a con artist's mind so they no longer think of using their persuasive skills to con people. On the surface, isn't that what prison and the penal code is about anyway? I believe we need to concern ourselves greatly about this, because we are now on the cusp of technologies that will make building brain-computer interfaces not only possible, but possibly simple. This will be an amazing boon to the elderly, others who have degenerative problems, and probably everyone else. At that point however, where does an individual's mind stop, and legally-accessible file storage begin? I believe the slippery slope of both these arguments starts at this point, deciding where the demarcation of self-incrimination is. What we decide as a society over this argument will have a significant affect on how our ultimate future will go.
recursive 15y ago
What is the difference between an encrypted hard drive, and one filled from /dev/random or the like? If I fill a hard drive with cosmic noise, can I be face consequences for not being able to decrypt it?
- dedward 15y ago
  Nothing - my personal opinions aside, the difference seems to be if the prosecution has enough evidence to convince a judge that a specific piece of suspected evidence is contained in that encrypted data. The court decision even addresses this - that there is no way to tell whether the drive is full of random data or real files once decrypted, and the government has not shown they are looking for a specific information - they are basically going on a fishing expedition saying "make him decrypt his drive because we think we'll find bad stuff on it"..... that's different than "Make him decrypt his drive because the file we gave him in the sting operation is strongly believed to be sitting on his drive, because the undercover officer saw him load it onto the laptop right before we arrested him". In this case, the court ordering the guy to decrypt the drive is reasonable. The devil is in the details it seems... the details are everything. They absolutely can't just bust down your door and demand your decryption keys.... the court seems to have addressed that.
nusrat 15y ago
My Objections Re Judicial Or Legislative Constraints On Cryptology In A First / Fourth / Fifth Amendment Domain: The Idioglossia Paradigm The following all occurs in San Francisco. Imagine that Alice, a native speaker of english, has devised a private spoken language, which is grammatically and linguistically rich, robust, and functionally complete, and which also is completely indecipherable and "un-analysable" to others by any means. Assume that no one, without Alice's cooperation, can definitively ascertain if she has taught anyone else to speak or understand her language. 1. May Alice legitimately be constrained from (or sanctioned for) expressing herself in this language? 2. If a communication by Alice in this language has been audio-recorded, under what condition may she legitimately be compelled to translate the recording? 3. If the communication of item #2 has been rendered -- or even originally produced -- in a faithful phonetic written form on a single paper copy, under what condition may Alice legitimately be compelled to translate it? 4. If the single copy of #3 is instead digital, produced in a manner such that nothing about its location, file-name, etc. imply anything about the content of the communication, then under what condition may Alice legitimately be compelled to translate it? 5. Now imagine another person, Carol, an "idiot savante", with idioglossic capability which superficially seems equivalent to Alice's. However, Carol's case is different, in that she has the mental ability to perform the most advanced and secure key-generation, encryption, and decryption without artificial aids. Carol's talent is so profound, that her encrypted-from-english speech -- and her comprehension of any received communication which has been thus encrypted -- occurs in real-time, and is indistinguishable from the naturalistic communication of a speaker of some unknown language (e.g. Alice). Are the answers to items #1-through-#4 any different in Carol's case? 6. Suppose that Ted purchases a new, blank, never-formatted hard-drive, formats it, creates a top-level directory named "Porn", and three subordinate directories named "Adults","Teens", and "Even Younger", and in the last creates a subordinate directory named "Screamed So Loud, I Had To Wear Hearing Protection". Into this directory he creates -- eiher copied or "de novo" -- a file named "I Got This From Alice.mpg.pgp" and one named "I Got This From Carol.mpg.pgp". Ted then purchases a new laptop computer, and replaces its single hard-drive with the one containing those files. Ted then proceeds quickly to a nearby place, where he is detained and the computer examined, and the the presence of the files is discerned by the examining authority. Forensic examination of the contents is fruitless. IANAL, but I believe that it can reqasonably be said that Ted has committed no illegal act in arriving at this moment. What can legitimately be compelled of any of the three named parties? 7. Ted is suspected of having child-porn on the disk, and is arrested. From the moment of his arrival at the place where is was originally detained,until the moment when a court orders Ted to render the files intelligible, Ted has communicated nothing to anyone except the bare minimum which is legally required (name, etc.). The "government" has expended enormous effort and expense in this entire matter. At this point Ted complies with the court's order. (IANAL, but I believe that the exact manner in which he does this is irrelevant to the coming question.) The contents of the files are shown to be nothing but the most scatalogical, vile, horrific, vituperative, and scurrilous written characterizations of all of the individuals -- by name -- involved in Ted's detention, arrest, prosecution and trial, including any judge(s) involved. From the perspective of knowing nothing of Ted's intentions or actions before the examination of his computer -- and nothing after except what was apparent to all involved without his cooperation -- can Ted reasonably be said to have violated any laws? Are there any charges which are likely to be sustained, assuming adequate and competent defense counsel?
aspensmonster 15y ago
To me it all comes down to whether you have to force the cooperation of the defendant or not when gathering evidence. Part of the problem is bad analogies: "Demanding the private key to an encrypted volume is no different than demanding the combination to a safe" or any other equivalent concept. If the defendant doesn't provide the combination to a safe than the blowtorches are coming out. At no point is his cooperation a _necessary condition_ to the gathering of evidence. However, to demand the defendant disclose the private key --or the more common "we don't want the key, just what's inside" demand-- is to require his cooperation. It is now a necessary condition that the defendant comply in order to gather this evidence. And as such, it becomes an invasion into the mind of the defendant for the purposes of coercing a confession. Indeed, the judge could grant immunity to the defendant, thereby requiring him under law to "testify" his private key, but then you don't have a case to prosecute. I wrote about this more thoroughly here http://aspensmonster.com/2012/01/26/on-private-keys-and-the-fifth-amendment/ http://aspensmonster.com/2012/01/26/on-private-keys-and-the-.... I'm curious to know what others think about all of this but lack the time to read through tens of pages of comments at the moment :P

518 points by zach 15y ago

Am I correctly understanding this decision to mean that, if the government already knows there's incriminating data on the drive, a compelled decryption would not be testimonial (as in the referenced cases from the 5th Circuit); but that the gov't can't compel decryption in order to go on a "fishing expedition", as any evidence found would be self-incriminating, and thus incur 5th Amendment protection? If so, that sounds spot-on correct to my (admittedly, lay and NAL) understanding of the issues.

jrockway 15y ago
I take a slightly different view in that one should never have to cooperate in any way in his own prosecution. Except for computers, nothing else is mandatory; if you refuse to be arrested, the cops will taze you (bro), if you go on a hunger strike in prison, the guards will tie you down and feed you through a tube, and so on. With all that as context, it seems absurd that you should have to type your innermost thoughts into a laptop so that the government can send you to jail.
- cstejerean 15y ago
  If you consider "resisting arrest => getting tazed", and "hunger strike => force feeding" as acceptable consequences for refusing to cooperate then "refuse to provide password => held in contempt of court" is always going to be an option for you.
  - true_religion 15y ago
    In the first two examples, they gain your cooperation without your will. When you are held in contempt, you still have to agree to cooperate to escape it.
    - rdtsc 15y ago
      worst case => you forget your password, now you can just be held in jail for life if judges don't believe you.
- rosser 15y ago
  There's a vast difference between not cooperating and actively impeding. Destruction of inculpatory evidence, for example, is a crime, even if, by some definitions, destroying the evidence could be termed "not cooperating." That's why, IMO, the court makes a distinction between compulsory decryption of a drive which the prosecution already knows to contain incriminating data (which isn't testimonial, and hence not subject to 5th Amendment protection), versus being compelled to decrypt a drive because the government thinks it's likely to find incriminating evidence on it. Actively impeding the prosecution, in the form of refusing to decrypt a drive known to contain inculpatory evidence, is in many ways tantamount to destroying that evidence. (Assuming, of course, reasonably secure encryption technology, &c.) You're not incriminating yourself by giving them the plaintext; they already know you have it, whether through confession, third party testimony, or some other means. What the court is saying here, OTOH, is that it would be testimonial, and hence subject to 5th Amendment protection, for you to decrypt a drive the prosecution merely suspects to contain inculpatory evidence, however strong their argument for suspecting such evidence to exist (and they'll have much better arguments than, "Well, drive is big enough to hold millions of files..."). If they were to find any such evidence, they'd have found it through compelling you to provide it to them, and that's the thing they're saying is counter to the 5th Amendment — that, in providing them with evidence they didn't already specifically know to exist, you've incriminated yourself.
  - rurounijones 15y ago
    Honest question here: From a legal standpoint how can the" prosecution already knows [the harddisk] to contain incriminating data" if the drive is encrypted? Are eyewitnesses saying "I saw him type the death list into his laptop" good enough? What is the criteria to meet that point?
    - elithrar 15y ago
      > Honest question here: From a legal standpoint how can the" prosecution already knows [the harddisk] to contain incriminating data" if the drive is encrypted? In many cases they can have intercepts, or bugs (cameras), but they are often not enough to form a water-tight case. They can therefore "know" you have incriminating data on your drive (or at least they will argue that point).

macrael 15y ago

The analogy to a combination for a safe seems very apt, I've forgotten: what is the precedent in such situations? Have people been forced to give up the combination for a safe in court before?

deleted 15y ago
[deleted]
- elithrar 15y ago
  > With a safe, however, the government does have the recourse of breaking out a blowtorch and cutting the safe open (which has been done in order to circumvent the 5th Amendment issues of compelling a suspect or defendant to open the combination lock). It's also worth adding that a safe can be forced open physically within a reasonable amount of time. A drive, encrypted properly, may not be able to be decrypted our lifetime, and this is what leads law enforcement to attempt to 'force' the suspect to provide the key themselves.
  - jrockway 15y ago
    How long does my safe have to be uncrackable in order for me to have to open it to incriminate myself? I personally have no ability to crack a safe, and that makes all safes out of reach to someone at my skill level. If I'm all the police have to crack your safe, do you have to incriminate yourself? If not, then what level of competence do the police have to demonstrate? Full-disk encryption is theoretically strong, but actual implementations are not likely to be as secure. If you tasked the world's best cryptographers with getting data off an encrypted computer and gave them five years, I bet you'd get the data. And I'm pretty sure that the Constitution doesn't say: "No person shall be compelled in any criminal case to be a witness against himself, unless the government is to cheap to do a proper investigation."
    - sliverstorm 15y ago
      See shingen's comment

shingen 15y ago

I guess it's better late than never. A critical finding.

darxius 15y ago

In plain English: Does this mean an encrypted hard drive CANNOT be decrypted by law enforcement and the contents of the drive cannot be used in court to convict?

elithrar 15y ago
> In plain English: Does this mean an encrypted hard drive CANNOT be decrypted by law enforcement and the contents of the drive cannot be used in court to convict? Not exactly. It means that the defendant does not (currently) have to provide the decryption key in cases where law enforcement has had no luck accessing the volume via other means. Not all encryption schemes are created equal, and in many cases, law enforcement will attempt to circumvent or retrieve the key otherwise (i.e. volatile memory, disk controllers, etc).
- darxius 15y ago
  So a sufficiently strong method of encryption (one that is proven to be not time or resource efficient) is enough to protect your hard drive from law enforcement eyes?
  - ubernostrum 15y ago
    Well, from reading the opinion it seems that one important factor was that basically the government's position was "we don't know if there's hidden encrypted data here, and if there is we don't know if that data is relevant to the case". So keep that in mind when interpreting this.
    - dedward 15y ago
      even further, the prosecution has not indicicated a specific file or location he expects to find, based on other evidence, on the drive.... and the court is deciding that amounts to a fishing expedition. they want to see his decrypted drive because it might contain evidence... not because they are very certain it had a key piece. even more important, although brief, is that by decrypting the drive the defendant would be automatically admitting he had control over the drive and its contents... something otherwise arguable on an unenecrypted drive, meaning he woud be testifying against himself for any illegal material found, even. if unrelated to thecase.

ChuckMcM 15y ago

Wow I think they got one right. It will be interesting to see how the government continues. Since currently its only a decision in the 11th circuit. If the government appeals, it goes to the supremes and if they hold that its a violation of your fifth amendment then everyone in the country gets to claim the fifth rather than give up the key. While I hate evil doers just as much as the next person I dislike the loss of civil liberties even more.

turing 15y ago
Well, not everyone. There are still situations in which the decryption would not be testimonial in nature and would thus not be privileged.
- mbateman 15y ago
  Or situations in which the data wouldn't incriminate the owner of the data but rather someone else, etc.
  - electromagnetic 15y ago
    Still, handing over the data would require the government agreeing that they wouldn't mine the data to find a prosecution against you, which is likely what companies already do.

jrs235 15y ago

If they don't have a case without the contents on the drive then they don't have a case! I scoff at the prosecutors that claim "but if we can't get the encrypted contents then criminals will get away!" Hey dipsticks! Maybe you should collect other evidence and maybe make sure you build up a case that doesn't strictly rely on the contents of a hard drive that you don't even have possession of. Okay, so lets say you get the drive decrpyted... how you gonna prove who/how the contents got on the drive?

elithrar 15y ago
> how you gonna prove who/how the contents got on the drive? There's no such thing as 100% proof. It's about being "beyond reasonable doubt", and as 'weaselly' as that might sound, it's true. If they intercept data coming over the wire, to your PC, and you have been the only person home and the chances that someone would plant a few terabytes of illegal data on your drive at those precise times...
smsm42 15y ago
Well, that's exactly the point of the case - if the defendant decrypts it, by that fact he proves he knew the password - meaning, he is the owner of the drive and had control over it. Giving by that to the police proof of both that the content was illegal and that he owned it. Unfortunately for them (but fortunately for the defendant) the court did not go their way.
jrs235 15y ago
Okay, given this some more that. In the case of US vs Fricosu, merely having the documents the government says exist on the encrypted drive does not in itself constitute a crime (like child pornography would/does in the case mentioned in this story). So, if we take a step back and ignore that the person who holds the key to the "safe" (the decryption key to the hard drive) is the defendant and pretend it is you or I that hold the key, then you and I could be compelled to decrypt the drive and disclose its contents or face contempt of court. Now if I was forced by the court to decrypt the drive,prior to doing so I would ask (and require) immunity from any and all evidence found that would/could incriminate me. It also appears the government is aware of a document or documents that exist and have certain contents... this is all they have a warrant for and are asking for. Change the scenario. The police have reason to believe that there is a gun in a safe that I own that was used in a murder. The have enough evidence to obtain a search warrant and compel me to open the safe. I didn't commit the murder but supposed someone else did. The force compels me to open my safe. Me owning the safe or the gun in itself is not a crime and is not incriminating. Perhaps I have a stash of drugs in my safe too. Prior to opening the safe I will ask for (and require) immunity for any crimes that stem from obtaining or finding any other evidence not listed on their search warrant. I'm sure there will be some back and forth on this as to limit what degree of immunity I actually receive... but believe you me, I will make certain any thing related to the drugs I know exist in there which is completely unrelated to searching for and obtaining a gun. Nothing wring with being compelled to opening the safe. Take the above scenario with one small change I (or you) the owner of the safe (that contains the gun, or so the government believes) is person accused of the murder. I will still ask for and go after immunity for anything not related to the current case. Owning the safe, and the gun, in itself is not a crime so unlocking the safe and allowing for the search is not incriminating in itself. The government still needs to build a case that I pulled the trigger on the gun and murdered someone (not that I merely knew that I had A gun or that I possessed a gun that I didn't know was used in the commission of a crime). The sticky point is, how can the government prove that a person knows the combination to a safe (or decryption key for a hard drive)? This is what the judge and court is trying to determine in the Fricosu case. Can she and does she know the key? And if she refuses to unlock it or says she doesn't know how can they "prove" she's lying?

ctdonath 15y ago

Two analogies I use: rag doll and sawz-all. Rag doll: so long as they can manipulate your uncooperative unresisting body to do something (apply thumbprint, get DNA sample), they can order you to cooperate. They cannot, however, compel you to do something which they otherwise have no case without. Sawz-all: so long as getting into a safe (or whatever) is just a normal matter of time and money, they can order you to open it. If, however, "opening" an encrypted volume or some such by brute force will take something on the order of heat death of the universe, and otherwise they have no case, you can stay silent.

monochromatic 15y ago
Those analogies are only useful to the extent they agree with the law. Otherwise they're just arbitrary.
- erichocean 15y ago
  As if the law isn't arbitrary! Both are arbitrary, and both might be reasonable.
  - JeremyBanks 15y ago
    He didn't say "reasonable", he said "useful".
derekp7 15y ago
If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents? To me, the hard drive platter is the paper, whereas the encrypted data is the contents of the papers.
- andylei 15y ago
  > If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents? under some circumstances, they could. the "foregone conclusions" doctrine says that if they know 1) what the contents say, 2) that those contents are incriminating, 3) that you can translate it, and 4) can prove 1-3, then yes, then can compel you to do translate / decrypt.

newbusox 15y ago

Realize that this is a fairly narrow opinion, and, in my opinion, not a particularly well-reasoned one. The issue here is child pornography: the would-be defendant was suspected of having child pornography on various hard drives which were encrypted. The court states that the actual contents of the hard drive are themselves not testimonial—that is, they are not covered by the Fifth Amendment and, if the government had access to the hard drives, they could present whatever was incriminating on them into evidence. So the issue is whether the act of producing the documents is a testimonial act and therefore covered by the Fifth Amendment The court concludes that the act of production is a testimonial act because, one, the testimony was not a "foregone conclusion." This holding is based on a case called Fisher v. United States, in which the Supreme Court stated that it was not testimonial to hand over certain papers that might have incriminating evidence because conceding that documents existed, that you had control over the documents, or that they were in your possession was not incriminatory given the circumstances of that case. Under the "foregone conclusion" doctrine, the government knew of the existence and location of these papers so the production of the papers added nothing or little to the government's information. If the government did NOT know that documents existed, they could not compel a would-be defendant to reveal the documents. Second, and most importantly, the court concluded that decrypting the documents would "use the contents of [the would-be defendant]'s mind" because "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." It's again important to note that this is a child pornography case: possession of child pornography is a crime, so if the would-be defendant here provided a decryption key, this would be tantamount to him admitting that he possessed the hard drive and had access to the files within it—that alone would constitute a crime if the files were found to be child pornography. This is therefore what the court later refers to as an "implied factual statement" and the Fifth Amendment protects this. Although the court also suggests that providing a decryption key might be like providing a combination (and therefore be admissible for Fifth Amendment protection on other grounds), it unfortunately devotes very little space to this discussion—and this seems to be the really big issue here. The case therefore leaves several unanswered questions: this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer? What if the foregone conclusion doctrine wasn't applicable—would the conclusion here be the same (most of the opinion is actually devoted to this discussion, which is less broadly applicable because, if the police know of the existence of specific files on hard drive, this doctrine is inapplicable)? Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system. In conclusion: the applicability of this case to future cases is unclear, so, for those that want this result, I don't really think this is a "slam dunk." There will likely be many future cases further developing this doctrine. As such, right now, it's very difficult to discuss the merits of the court's holding on the "decryption is testimony" argument (which, in my mind, is the most important) in a general sense, since the reasoning here seems very specific to the facts of case.

joering2 15y ago

this is the key to this case and reasonings behind such a response from court: > The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents. Government had inexperienced prosecutor building case and the judge, rightfully responded to prosecutor request: in order to get the content that prosecutor wants, they need keys. By not revealing keys defendant is using 5th. Everything seems fine, other than I am sure this case will come back and this time prosecutor will wont the keys not the content. This mistake, I think rest assured, will not happen from Prosecutor's part again in this or any other cases. --- below is what I started typing but when I read the case again it stroked me as of why we dealing with such a decision. I decided to leave it instead of deleting if you want to read anyways: First and foremost: I use TrueCrypt. Its amazing, simple, and it works. Just make sure, when converting existing partition, you use at least "3-pass wipe" mode since todays hard disk drives can keep "second layer" of magnetized data you were converting for months giving law enforcement access to your pure data pre-endryption. In my example, I have about 10TB across 8 HDD with my CAD/3DStudio Max work. I also have hours of digital-cam material from 2003 where 15 minutes of recording took 2TB of avi files and I never cared to convert. Said that, I think in this case the court was terribly wrong and defendant should play lottery first thing he leaves the jail. > First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind say what? they asked him for password he knows. He doesnt want to give it out. Court agrees saying that this would require to force defendant to use his mind and reveal information he keeps there and that noone else can access. May I know any court case or any case where defendant brain would not be used?? I dont honestly find a difference between asking him for password and asking him for anything else in any case proceedings. He is unwilling to comply with court, bottom line. > Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all. sure, but if the Government has any other evidence against defendant, the burden of proof should clearly shift to defendant. If, for example Government has ISP logs of tons of torrent data downloaded by defendant router, one can fairly assume that illegal files are stored there. If defendent is not willing to "open the safe" by releasing the key, he should be found guilty by withholding the evidence. -- Just open the damn vault and show those idiots from the Govt & Co how stupid they really are!

15y ago

jakeonthemove 15y ago

Yes! There are still smart people in the justice system who will make the right decision no matter who they're pissing off. My hat's off to you, Judge Tjoflat! P.S. More people should know about this decision and the judges!

wladimir 15y ago

I've always wondered this about forced decryption: what if you have large random files on your harddrive? (irrelevant how they got there -- you may not even know) For all intents or purposes these look like encrypted data, and if they could force you to "decrypt" them you have a problem of Kafkaesque proportions. Is there any rule that data on your drive should be somehow sensible and decryptable to human-understandable information, using keys that you have in your head?

DanBC 15y ago
People wanting to use encrypted volumes; or encrypted drives; or who delete individual files; or who wipes discs[1] often use writes of random data to 'sanitise' the drive before writing their data. Thus, they're likely to have lots of random data strewn around their drives. I have no idea what would happen if you coughed up two keys which unencrypted 30% of that random data; what would happen with the rest?

DanBC 15y ago

Can't the investigators get a warrant to spy on the suspect? They then install a bunch of spyware on the machine and in the suspect's home and on the suspect's internet connection.

AndrewDucker 15y ago
If I was that suspect then I would never, ever, use that computer again.
- DanBC 15y ago
  For sure. There are other measures the suspect could have taken; store everything on an always encrypted micro-SD, which is tiny enough to be easily destroyed. Actually: Has anyone done any research about the risks of "super microscopes and Flash memory"? There's a theoretical risk with conventional platters. I don't know how big one bit is on a conventional drive, and I don't know how big one bit is on a, say, 8GB micro-sd card.
  - burgerbrain 15y ago
    What are they going to do, read the encrypted data off the flash drive the hard way?
    - DanBC 15y ago
      I stress this is just me noodling around, and that I'm not talking about real world risks. But: Is it possible to read unencrypted data of the flash drive the hard way? Obviously, if it's sensibly encrypted there's no point. But a person may think they have physically destroyed a flash drive only to have left information available. Here's some links to DIY de-capping and microscopy of a variety of ICs: (http://siliconexposed.blogspot.com/2011/03/microchip-pic12f683-teardown.html http://siliconexposed.blogspot.com/2011/03/microchip-pic12f6...) (http://uvicrec.blogspot.com/ http://uvicrec.blogspot.com/) (http://dangerousprototypes.com/2011/06/27/hacking-the-pic-18f1320/ http://dangerousprototypes.com/2011/06/27/hacking-the-pic-18...)

Intermernet 15y ago

I wonder if evidence acquired by brute force decryption is admissible?

dedward 15y ago
Sure, if the seizure of the laptop as evidence was legal and all that, of course it would be. The issue is the defendants rights and responsibilities in helping them figure that out.

aperrien 15y ago

I have some definite concerns with this. If producing the key via government coercion is legal, where do we stop? Right now, we have (admittedly) very crude technology that lets us probe the brain and tell with a reasonable certainty if someone is lying. It may be possible to produce a machine in the future that can analyze the mind well enough that it will be possible to tell what words a person is thinking. If that's the case, would it be legal to require the accused to be subject to such a machine to reveal their password? If that is the case, will the government need the accused's testimony at all? Further along that line of thinking, it may become possible to change what a person is thinking by suppressing or exciting different regions within the brain. At that point, is punishment still legal if the government can simply change what a perpetrator thinks? For example, changing a con artist's mind so they no longer think of using their persuasive skills to con people. On the surface, isn't that what prison and the penal code is about anyway? I believe we need to concern ourselves greatly about this, because we are now on the cusp of technologies that will make building brain-computer interfaces not only possible, but possibly simple. This will be an amazing boon to the elderly, others who have degenerative problems, and probably everyone else. At that point however, where does an individual's mind stop, and legally-accessible file storage begin? I believe the slippery slope of both these arguments starts at this point, deciding where the demarcation of self-incrimination is. What we decide as a society over this argument will have a significant affect on how our ultimate future will go.

recursive 15y ago

What is the difference between an encrypted hard drive, and one filled from /dev/random or the like? If I fill a hard drive with cosmic noise, can I be face consequences for not being able to decrypt it?

dedward 15y ago
Nothing - my personal opinions aside, the difference seems to be if the prosecution has enough evidence to convince a judge that a specific piece of suspected evidence is contained in that encrypted data. The court decision even addresses this - that there is no way to tell whether the drive is full of random data or real files once decrypted, and the government has not shown they are looking for a specific information - they are basically going on a fishing expedition saying "make him decrypt his drive because we think we'll find bad stuff on it"..... that's different than "Make him decrypt his drive because the file we gave him in the sting operation is strongly believed to be sitting on his drive, because the undercover officer saw him load it onto the laptop right before we arrested him". In this case, the court ordering the guy to decrypt the drive is reasonable. The devil is in the details it seems... the details are everything. They absolutely can't just bust down your door and demand your decryption keys.... the court seems to have addressed that.

nusrat 15y ago

My Objections Re Judicial Or Legislative Constraints On Cryptology In A First / Fourth / Fifth Amendment Domain: The Idioglossia Paradigm The following all occurs in San Francisco. Imagine that Alice, a native speaker of english, has devised a private spoken language, which is grammatically and linguistically rich, robust, and functionally complete, and which also is completely indecipherable and "un-analysable" to others by any means. Assume that no one, without Alice's cooperation, can definitively ascertain if she has taught anyone else to speak or understand her language. 1. May Alice legitimately be constrained from (or sanctioned for) expressing herself in this language? 2. If a communication by Alice in this language has been audio-recorded, under what condition may she legitimately be compelled to translate the recording? 3. If the communication of item #2 has been rendered -- or even originally produced -- in a faithful phonetic written form on a single paper copy, under what condition may Alice legitimately be compelled to translate it? 4. If the single copy of #3 is instead digital, produced in a manner such that nothing about its location, file-name, etc. imply anything about the content of the communication, then under what condition may Alice legitimately be compelled to translate it? 5. Now imagine another person, Carol, an "idiot savante", with idioglossic capability which superficially seems equivalent to Alice's. However, Carol's case is different, in that she has the mental ability to perform the most advanced and secure key-generation, encryption, and decryption without artificial aids. Carol's talent is so profound, that her encrypted-from-english speech -- and her comprehension of any received communication which has been thus encrypted -- occurs in real-time, and is indistinguishable from the naturalistic communication of a speaker of some unknown language (e.g. Alice). Are the answers to items #1-through-#4 any different in Carol's case? 6. Suppose that Ted purchases a new, blank, never-formatted hard-drive, formats it, creates a top-level directory named "Porn", and three subordinate directories named "Adults","Teens", and "Even Younger", and in the last creates a subordinate directory named "Screamed So Loud, I Had To Wear Hearing Protection". Into this directory he creates -- eiher copied or "de novo" -- a file named "I Got This From Alice.mpg.pgp" and one named "I Got This From Carol.mpg.pgp". Ted then purchases a new laptop computer, and replaces its single hard-drive with the one containing those files. Ted then proceeds quickly to a nearby place, where he is detained and the computer examined, and the the presence of the files is discerned by the examining authority. Forensic examination of the contents is fruitless. IANAL, but I believe that it can reqasonably be said that Ted has committed no illegal act in arriving at this moment. What can legitimately be compelled of any of the three named parties? 7. Ted is suspected of having child-porn on the disk, and is arrested. From the moment of his arrival at the place where is was originally detained,until the moment when a court orders Ted to render the files intelligible, Ted has communicated nothing to anyone except the bare minimum which is legally required (name, etc.). The "government" has expended enormous effort and expense in this entire matter. At this point Ted complies with the court's order. (IANAL, but I believe that the exact manner in which he does this is irrelevant to the coming question.) The contents of the files are shown to be nothing but the most scatalogical, vile, horrific, vituperative, and scurrilous written characterizations of all of the individuals -- by name -- involved in Ted's detention, arrest, prosecution and trial, including any judge(s) involved. From the perspective of knowing nothing of Ted's intentions or actions before the examination of his computer -- and nothing after except what was apparent to all involved without his cooperation -- can Ted reasonably be said to have violated any laws? Are there any charges which are likely to be sustained, assuming adequate and competent defense counsel?

aspensmonster 15y ago

To me it all comes down to whether you have to force the cooperation of the defendant or not when gathering evidence. Part of the problem is bad analogies: "Demanding the private key to an encrypted volume is no different than demanding the combination to a safe" or any other equivalent concept. If the defendant doesn't provide the combination to a safe than the blowtorches are coming out. At no point is his cooperation a _necessary condition_ to the gathering of evidence. However, to demand the defendant disclose the private key --or the more common "we don't want the key, just what's inside" demand-- is to require his cooperation. It is now a necessary condition that the defendant comply in order to gather this evidence. And as such, it becomes an invasion into the mind of the defendant for the purposes of coercing a confession. Indeed, the judge could grant immunity to the defendant, thereby requiring him under law to "testify" his private key, but then you don't have a case to prosecute. I wrote about this more thoroughly here http://aspensmonster.com/2012/01/26/on-private-keys-and-the-fifth-amendment/ http://aspensmonster.com/2012/01/26/on-private-keys-and-the-.... I'm curious to know what others think about all of this but lack the time to read through tens of pages of comments at the moment :P