7 ms·

Has there ever been a court case related to encrypted data or secret codes without a computer being involved? If the cops get a warrant to tap a phone line and

Has there ever been a court case related to encrypted data or secret codes without a computer being involved? If the cops get a warrant to tap a phone line and they hear me speaking with an associate using some sort of coded language (as spies and criminals often do on TV) can i be compelled to explain to them what all the little codewords actually mean?

pc86 3y ago
You can't be compelled but especially with spoken language it's going to be very easy for LE to decrypt it on their own by just correlating the coded language with whatever actions were taken later.
- lelanthran 3y ago
  But that's just the point. In the past, pre-computer days, if the cops couldn't break your encryption you were not compelled to tell them how and that was their problem. Now you are compelled. I feel that that should not have changed.
yttribium 3y ago
They will admit testimony by some cop to explain that "based on my training and experience, I believe 'going to the pool' to be code for 'soliciting a murder'"
- wombatpm 3y ago
  But what if translate everything to LinearB or Klingon pig-Latin and then encrypt. Am I required to provide a Rosetta Stone to investigators?
  - anon84873628 3y ago
    IANAL but I don't think you're required to provide anything to "investigators". Certainly not before consulting your lawyer. However I believe the court could eventually order you to produce the Rosetta Stone, after various proceedings. At that point you have to decide whether you want to comply with the order or not, and not doing so would likely have negative consequences like being held in contempt.
yencabulator 3y ago
Cryptography predates computers, so the only real question is has it shown up in public court records or not. I'd expect plenty of history in treason charges against caught spies, but whether the records are public or not is a different question. https://en.wikipedia.org/wiki/Book_cipher https://en.wikipedia.org/wiki/Book_cipher https://en.wikipedia.org/wiki/Codebook https://en.wikipedia.org/wiki/Codebook https://en.wikipedia.org/wiki/Poem_code https://en.wikipedia.org/wiki/Poem_code
pvg 3y ago
Don’t know about court cases but wartime censorship prevented the transmission of suspected codes in some situations, including in the US.
- FergusArgyll 3y ago
  Wartime allows for many rights to be taken away. for example: Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
zeroonetwothree 3y ago
I would think no, you don’t have to explain it because it’s testimonial. Of course your associate could still reveal it. But it’s quite complex, see https://scholarship.law.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1942&context=lawreview https://scholarship.law.edu/cgi/viewcontent.cgi?referer=&htt...
- m463 3y ago
  what's troubling is that "your associate" might be, apple. For example, when I add an account on my mac - not related to apple in any way - the computer will send information back to apple. Every time. I have cloud stuff turned off. As far as my phone - most of this stuff is not only hidden, but apple doesn't let me run software to know who it is talking to, and what is being sent.
hutzlibu 3y ago
"can i be compelled to explain to them what all the little codewords actually mean" I would like to think not, as usually you cannot be made to compell against yourself. The famous right to silence. https://en.wikipedia.org/wiki/Right_to_silence https://en.wikipedia.org/wiki/Right_to_silence Which was the base of this court case (and I think it is troublesome, that it had to be debated at all) "One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones"
- mrandish 3y ago
  Regarding the "Right to Silence", I recently learned something I didn't know. While I was familiar with the right to remain silent after arrest to avoid self-incrimination (based on the Miranda ruling). There is a separate right to remain silent unrelated to incrimination (5th amendment) but rather tied to 1st amendment free speech. Of course, we're all familiar with free speech rights but is there a corresponding right to "free silence"? It turns out there is but it's not enumerated in the first amendment, so it's called an "implied right." It's been derived by the courts (including the Supreme Court) as logically inferred by the rights which are enumerated in the 1st amendment. What I found interesting is the boundaries of this implied right to silence are currently less well-defined than than the other 1st and 5th amendment rights. Apparently, some cases the court will be deciding this year may involve further fleshing out these fuzzy edges. I'm not an expert but as I recall, the scenarios may include things like whether social media networks can be compelled by a legislative statute to disclose (ie 'speak') their content moderation policies and whether public universities can enforce codes of conduct which may compel speech. Personally, I'm all-in on the vital necessity of robustly expansive free speech rights, so I'm also all-in on robust freedom of silence rights. I used to think I understood the limits of free speech in the U.S. but reading this article by 1st amendment expert Ken White on free speech tropes surprised me. Highly recommended: https://www.theatlantic.com/ideas/archive/2019/08/free-speech-cliches-media-should-stop-using/596506/ https://www.theatlantic.com/ideas/archive/2019/08/free-speec...
  - filoeleven 3y ago
    Addendum: you must explicitly invoke your 5th amendment right to silence when being questioned by police in order to prevent your silence being used against you in court. It’s a shit ruling, but it’s also current law. This theoretically only applies if you have answered some questions but remained silent on others. https://www.scotusblog.com/case-files/cases/salinas-v-texas/ https://www.scotusblog.com/case-files/cases/salinas-v-texas/
jimt1234 3y ago
For criminal organizations, it's common to "decipher" coded language to juries. And it's really not that difficult when drug dealers are talking about "kings" in conversations that have nothing to do with royalty or poker. (a "king" generally means a kilogram of cocaine.)
- kobayashi 3y ago
  OK, but I think you missed the point of the question above. The point was whether a court can compel people to explain a secret code, and whether there should be a different standard, if that code involves the computer or not
  - jonstewart 3y ago
    But there is the essential difference — it is not the algorithm, whether performed manually or by machine, it is the testimony. A defendant need not testify against oneself. A computer cannot testify at all. The police can seize the computer and have a go at cracking it, it’s just a thing. This one seems pretty cut and dry, frankly, since they’ve asked him to provide the code, and he refused. It sounds like the prosecution erred significantly in making closing arguments about pleading the fifth being indicative of guilty. The more interesting question, which is not involved in this case, is whether a defendant can be compelled to provide unlocked devices to law enforcement.
- dehrmann 3y ago
  Assuming the right one-time pad, a prosecutor could "prove" almost anything.
- crossroadsguy 3y ago
  What if a coded message, or not coded at all, was interpreted as something that was not the case? Then is it the other legal team’s responsibility to point out that it’s bogus and refute the claim that it meant “I stole Jack’s peanuts”. Maybe by giving examples of other assumed ciphers that prove it actually decoded to “I can drink 5 beer cans in 2.5 minutes” or that it also means “Rabbits are actually slow” according to yet another assumed cipher? How does that work? I mean I know if it’s a jury and then it can just come down to their individual and collective whims and fancy and but how does it work in general?
giancarlostoro 3y ago
You can plea the fifth.
heavyset_go 3y ago
You can't be compelled to testify against yourself.
gorgoiler 3y ago
What about being compelled to either unlock and open a safe, or provide the code to unlock it? I too am surprised that existing case law in the non-tech space wasn’t mentioned in the article. It would have been helpful if the Ars journalist had scored an interview with his expert source — Berkeley academic Orin Kerr — rather than simply re-reporting Kerr’s own analysis: https://reason.com/volokh/2023/12/14/is-compelled-decryption-heading-to-the-supreme-court/ https://reason.com/volokh/2023/12/14/is-compelled-decryption...
- notfed 3y ago
  A court or police compelling someone to open their safe would tautologically be for the purpose of discovering evidence of a crime which is exactly what the fifth amendment protects. The reason it's not a been a big deal is courts is because, if police have a warrant, they're going to hire their go-to safe driller to drill the safe open.
  - wrboyce 3y ago
    Fun fact, I’m UK based and should I find the police demanding I open my (gun) safe I would legally have to refuse until an authorised firearms officer is present lest I lose my shotgun license.
ponector 3y ago
You could go to prison for refusing to provide password. Here is the story from 2014: A 22-year-old man has been jailed for six months after refusing to provide passwords to his encrypted hard-drives, the Daily Mail reported. He was imprisoned under a section of RIPA, a UK law that was originally pushed as a counter-terrorism measure, but which has now ballooned to cover many different aspects of crime—something that has got civil liberties groups worried. Christopher Wilson is suspected of attempting to break into a law enforcement website and “trolling” the Newcastle Police by fooling them with a prank phone call. However, these are not what he is going to prison for: he's spending time behind bars for not giving up his passwords.

pc86 3y ago

You can't be compelled but especially with spoken language it's going to be very easy for LE to decrypt it on their own by just correlating the coded language with whatever actions were taken later.

lelanthran 3y ago
But that's just the point. In the past, pre-computer days, if the cops couldn't break your encryption you were not compelled to tell them how and that was their problem. Now you are compelled. I feel that that should not have changed.

yttribium 3y ago

They will admit testimony by some cop to explain that "based on my training and experience, I believe 'going to the pool' to be code for 'soliciting a murder'"

wombatpm 3y ago
But what if translate everything to LinearB or Klingon pig-Latin and then encrypt. Am I required to provide a Rosetta Stone to investigators?
- anon84873628 3y ago
  IANAL but I don't think you're required to provide anything to "investigators". Certainly not before consulting your lawyer. However I believe the court could eventually order you to produce the Rosetta Stone, after various proceedings. At that point you have to decide whether you want to comply with the order or not, and not doing so would likely have negative consequences like being held in contempt.

yencabulator 3y ago

Cryptography predates computers, so the only real question is has it shown up in public court records or not. I'd expect plenty of history in treason charges against caught spies, but whether the records are public or not is a different question. https://en.wikipedia.org/wiki/Book_cipher https://en.wikipedia.org/wiki/Book_cipher https://en.wikipedia.org/wiki/Codebook https://en.wikipedia.org/wiki/Codebook https://en.wikipedia.org/wiki/Poem_code https://en.wikipedia.org/wiki/Poem_code

pvg 3y ago

Don’t know about court cases but wartime censorship prevented the transmission of suspected codes in some situations, including in the US.

FergusArgyll 3y ago
Wartime allows for many rights to be taken away. for example: Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

zeroonetwothree 3y ago

I would think no, you don’t have to explain it because it’s testimonial. Of course your associate could still reveal it. But it’s quite complex, see https://scholarship.law.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1942&context=lawreview https://scholarship.law.edu/cgi/viewcontent.cgi?referer=&htt...

m463 3y ago
what's troubling is that "your associate" might be, apple. For example, when I add an account on my mac - not related to apple in any way - the computer will send information back to apple. Every time. I have cloud stuff turned off. As far as my phone - most of this stuff is not only hidden, but apple doesn't let me run software to know who it is talking to, and what is being sent.

hutzlibu 3y ago

"can i be compelled to explain to them what all the little codewords actually mean" I would like to think not, as usually you cannot be made to compell against yourself. The famous right to silence. https://en.wikipedia.org/wiki/Right_to_silence https://en.wikipedia.org/wiki/Right_to_silence Which was the base of this court case (and I think it is troublesome, that it had to be debated at all) "One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones"

mrandish 3y ago
Regarding the "Right to Silence", I recently learned something I didn't know. While I was familiar with the right to remain silent after arrest to avoid self-incrimination (based on the Miranda ruling). There is a separate right to remain silent unrelated to incrimination (5th amendment) but rather tied to 1st amendment free speech. Of course, we're all familiar with free speech rights but is there a corresponding right to "free silence"? It turns out there is but it's not enumerated in the first amendment, so it's called an "implied right." It's been derived by the courts (including the Supreme Court) as logically inferred by the rights which are enumerated in the 1st amendment. What I found interesting is the boundaries of this implied right to silence are currently less well-defined than than the other 1st and 5th amendment rights. Apparently, some cases the court will be deciding this year may involve further fleshing out these fuzzy edges. I'm not an expert but as I recall, the scenarios may include things like whether social media networks can be compelled by a legislative statute to disclose (ie 'speak') their content moderation policies and whether public universities can enforce codes of conduct which may compel speech. Personally, I'm all-in on the vital necessity of robustly expansive free speech rights, so I'm also all-in on robust freedom of silence rights. I used to think I understood the limits of free speech in the U.S. but reading this article by 1st amendment expert Ken White on free speech tropes surprised me. Highly recommended: https://www.theatlantic.com/ideas/archive/2019/08/free-speech-cliches-media-should-stop-using/596506/ https://www.theatlantic.com/ideas/archive/2019/08/free-speec...
- filoeleven 3y ago
  Addendum: you must explicitly invoke your 5th amendment right to silence when being questioned by police in order to prevent your silence being used against you in court. It’s a shit ruling, but it’s also current law. This theoretically only applies if you have answered some questions but remained silent on others. https://www.scotusblog.com/case-files/cases/salinas-v-texas/ https://www.scotusblog.com/case-files/cases/salinas-v-texas/

jimt1234 3y ago

For criminal organizations, it's common to "decipher" coded language to juries. And it's really not that difficult when drug dealers are talking about "kings" in conversations that have nothing to do with royalty or poker. (a "king" generally means a kilogram of cocaine.)

kobayashi 3y ago
OK, but I think you missed the point of the question above. The point was whether a court can compel people to explain a secret code, and whether there should be a different standard, if that code involves the computer or not
- jonstewart 3y ago
  But there is the essential difference — it is not the algorithm, whether performed manually or by machine, it is the testimony. A defendant need not testify against oneself. A computer cannot testify at all. The police can seize the computer and have a go at cracking it, it’s just a thing. This one seems pretty cut and dry, frankly, since they’ve asked him to provide the code, and he refused. It sounds like the prosecution erred significantly in making closing arguments about pleading the fifth being indicative of guilty. The more interesting question, which is not involved in this case, is whether a defendant can be compelled to provide unlocked devices to law enforcement.
dehrmann 3y ago
Assuming the right one-time pad, a prosecutor could "prove" almost anything.
crossroadsguy 3y ago
What if a coded message, or not coded at all, was interpreted as something that was not the case? Then is it the other legal team’s responsibility to point out that it’s bogus and refute the claim that it meant “I stole Jack’s peanuts”. Maybe by giving examples of other assumed ciphers that prove it actually decoded to “I can drink 5 beer cans in 2.5 minutes” or that it also means “Rabbits are actually slow” according to yet another assumed cipher? How does that work? I mean I know if it’s a jury and then it can just come down to their individual and collective whims and fancy and but how does it work in general?

giancarlostoro 3y ago

You can plea the fifth.

heavyset_go 3y ago

You can't be compelled to testify against yourself.

gorgoiler 3y ago

What about being compelled to either unlock and open a safe, or provide the code to unlock it? I too am surprised that existing case law in the non-tech space wasn’t mentioned in the article. It would have been helpful if the Ars journalist had scored an interview with his expert source — Berkeley academic Orin Kerr — rather than simply re-reporting Kerr’s own analysis: https://reason.com/volokh/2023/12/14/is-compelled-decryption-heading-to-the-supreme-court/ https://reason.com/volokh/2023/12/14/is-compelled-decryption...

notfed 3y ago
A court or police compelling someone to open their safe would tautologically be for the purpose of discovering evidence of a crime which is exactly what the fifth amendment protects. The reason it's not a been a big deal is courts is because, if police have a warrant, they're going to hire their go-to safe driller to drill the safe open.
- wrboyce 3y ago
  Fun fact, I’m UK based and should I find the police demanding I open my (gun) safe I would legally have to refuse until an authorised firearms officer is present lest I lose my shotgun license.

ponector 3y ago

You could go to prison for refusing to provide password. Here is the story from 2014: A 22-year-old man has been jailed for six months after refusing to provide passwords to his encrypted hard-drives, the Daily Mail reported. He was imprisoned under a section of RIPA, a UK law that was originally pushed as a counter-terrorism measure, but which has now ballooned to cover many different aspects of crime—something that has got civil liberties groups worried. Christopher Wilson is suspected of attempting to break into a law enforcement website and “trolling” the Newcastle Police by fooling them with a prank phone call. However, these are not what he is going to prison for: he's spending time behind bars for not giving up his passwords.