6 ms·

Judge orders child porn suspect to decrypt hard drives

24 points by nkhumphreys 13y ago

cobrabyte 13y ago
I wonder what the punishment will be for not providing the passwords or decrypting the drives.
- DanBlake 13y ago
  Its contempt of court I believe- So indefinitely. http://abcnews.go.com/2020/story?id=8101209&page=1 http://abcnews.go.com/2020/story?id=8101209&page=1
  - rayiner 13y ago
    Reading between the lines, it seems to me like he was taking advantage of the free medical care in prison ("Meanwhile, the clock was ticking as Beatty Chadwick's health deteriorated. He has been treated for non-Hodgkins Lymphoma, which could recur at any time. "Here he is, 10 years, he knows he's not well," Bobbie told "Primetime.")
- venomsnake 13y ago
  Contempt of court probably, but raynier can say in details. Interesting thing will be what will happen if you are really unable to decrypt the stuff. If you store the keys away from the drives (lest say ram only server somewhere) that expires if it does not receive confirmation code every 24 hours. And the keys are lost forever this way.
  - nicholaides 13y ago
    Would that still be contempt of court? Or destruction of evidence, or whatever. Couldn't it be argued that it's a purposeful destruction of evidence if once they know they are going to court they stop putting in the code to keep the data from being destroyed?
deleted 13y ago
[deleted]
Torgo 13y ago
The difference here seems to be that they successfully decrypted one of his drives and were able to prove that there was child pornography and that the drive belonged to him. At that point, as I understand it legally, he can be compelled to decrypt the drives because they already know he was possessing child pornography on at least one of his drives. It would be different if they did not actually know he had child pornography on his stuff.
- kinghajj 13y ago
  So they can only force you to violate your 5th amendment rights if they "really really know" that you're guilty anyways?
  - danielweber 13y ago
    You are begging the question of whether decrypting a hard drive is a violation of your Fifth Amendment rights.
    - rosser 13y ago
      Your 5th Amendment rights are completely and utterly irrelevant to their decrypting your drive.
      - yebyen 13y ago
        Unless you are the one who is being compelled to decrypt the drive. Producing the key is an act of testimony. You could not state for the record, the passphrase for the key, if you did not know it. Breaking his crypto in some way, to access his files without cooperation, on the other hand... that is no fifth-amendment violation, to be sure. It also doesn't prove that he's been in control or owns the data.
  - Torgo 13y ago
    My reference is the case in which an agent saw that there was child pornography on a laptop before the lid was closed and the computer went into suspend; the agent then KNEW the machine contained the offending material, and so they could induce the person to decrypt the machine because the existence of the material was an already established fact and therefore not a violation of self-incrimination.
joezydeco 13y ago
"...after devoting “substantial resources” in the case, FBI agents apparently have been able to decrypt one of the drives. The government argued that because it had found “numerous files which constitute child pornography..." So if they've found the evidence they're looking for, why keep pressing? Because they don't want to spend the extra effort to decrypt the rest and are looking for a plea bargain?
- DanBC 13y ago
  To see if they can identify the victim and take protective action.
- 3825 13y ago
  >The government argued that because it had found “numerous files which constitute child pornography,” “detailed personal financial records and documents belonging to Feldman,” and “dozens of personal photographs of Feldman," Feldman therefore has “access to and control over” the set of drives. So if the FBI puts my bank statements (PDF) and my photos in a drive along with "some files that constitute child pornography", am I guilty as well? "We found three safes. We opened one of them and found some illegal things in it. We swear we didn't put them there. We also found some financial records and photos belonging to this guy. We didn't put those there either. Pinky swear!"
  - DanBC 13y ago
    I'm assuming they would have taken forensic images of the drives, rather than the drives themselves. Tampering with evidence would be stupid. They'd go to jail, they'd risk all previous cases they've been involved in, etc. I guess it happens, but you need a lot more than "I bet they did it".
    - yebyen 13y ago
      Yeah, so I'm convinced that the FBI would not have done the tampering. Now show that no other person has had access to the drives' contents prior to their collection as evidence. He would certainly strengthen the case for that (his ownership and control of the data) if he was able to decrypt the drives himself.
im3w1l 13y ago
AFAIK it is physically possible to construct drives that cannot be backed up and that self destruct if you decrypt with the wrong key (using quantum magic).
_lex 13y ago
I wonder what happens in a case like this if the person is simply unable to remember the password.
- general_failure 13y ago
  Just click the forgot password link :p
kefka 13y ago
Now, is this "possession" of child pronography crap images that ended up in a Content.IE5 directory, or in Mozilla's cache? Or perhaps, even deleted from those locations? Or are these images that were in C:/windows/fonts/child_porn hidden folder? And that, why is child porn illegal? It is only a picture of a CRIME THAT HAD TAKEN PLACE. Yet, snuff films and other films and pictures that show active murder are completely legal. And considering there is no mens rea for this possession, I believe that it should not be a crime. For the people whom nodded me down, please answer this: why is child porn illegal but videos/pictures of murder NOT illegal?
- rmc 13y ago
  why is child porn illegal? It is only a picture of a CRIME THAT HAD TAKEN PLACE. An important question is: Does criminalizing the possesion of child porn reduce the chance of those original crimes from happening? I think it does, and I think that's a good reason to ban it. It's also a good way to discourage people who like child porn, to tell them that there is something wrong with them, and that they should not do it.
  - thezilch 13y ago
    That's his point. Would criminalizing violent movies reduce chances of violence? Many think it would; so ban those movies? Video Games? Guns? Knives? Rice cookers?
    - jacquesm 13y ago
      You're totally missing it. A CP image is a record of a crime, a violent movie is just a depiction of something that would be a crime except that it isn't real. So criminalizing child porn is of a different degree than criminalizing violent movies, the one is somewhat reasonable the other is ridiculous.
      - lotharbot 13y ago
        In many countries, virtual CP is also illegal. US law specifically includes a clause regarding material that "is, or appears to be, of a minor engaging in sexually explicit conduct" -- http://www.law.cornell.edu/uscode/text/18/2252A http://www.law.cornell.edu/uscode/text/18/2252A section (a)(6) .
spindritf 13y ago
> the Milwaukee-area man now must either ... or must provide an unencrypted copy of the data How will they know if he provided an unencrypted copy of the data or some other data? Also, what if he forgot the password? I have at least one pendrive with an encrypted partition that I wouldn't be able to decrypt. It's empty but that is supposedly unprovable. I should probably reformat it. On the political side, the government is cleverly eroding the right to privacy. Virtually no one will stand up for a paedophile (whether the charge is true doesn't matter) so they get to set a precedence here and use it against whomever they want later.
- wpietri 13y ago
  I don't see an erosion here. Has the right to privacy ever allowed people to prevent access to something where there is probable cause to think there's evidence of a crime?
  - downandout 13y ago
    He isn't "preventing access". He is merely remaining silent on the matter, and has not admitted ownership of the drives or knowledge of the contents or decryption key. It is important to note that the judge never held that forced decryption of drives he owns violates the fifth amendment; he simply held that, at the time of the government's request, there was no evidence that he actually owned and controlled the drives and their contents. The recent discovery of the data on the other drives convinced the judge that the drives do in fact belong to him, and as a result he is now OK with ordering the forced decryption. If you are doing bad things, you probably shouldn't use a decryption key that you could remember. Store that stuff elsewhere.
  - mikeash 13y ago
    I think it's a wholly new situation. Previously, you couldn't be compelled to e.g. hand over the combination to a safe, but the police are free to just break into it, once they have a warrant. There's no "breaking into" cryptography, which sets it apart. In any case, I don't see how the Fifth Amendment wouldn't apply here. Maybe we'd prefer that people not be able to take refuge in it for this stuff, but that means amending the Constitution, not ignoring inconvenient parts of it.
t0mas88 13y ago
Can somebody (in the US) be ordered to aid their own prosecution? In the EU it would be against the European convention on human rights as far as I know. So I'm guessing the US constitution protects suspects in the same way?
- danielweber 13y ago
  You cannot be compelled to testify against yourself. However, you can be compelled to turn over, say, your company's memos that describe how you were planning to build the orphanage out of plastic explosives.
- yebyen 13y ago
  Yes, it's called the Fifth Amendment to the Constitution here. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  - t0mas88 13y ago
    Ok, but not being a witness against oneself is not the same as not being forced to aid in prosecution? Because I think not to aid in your own prosecution is broader, allowing the suspect to refuse this court order. Or was this court order unconstitutional?
    - yebyen 13y ago
      I'm not arguing anymore whether it's constitutional or not. I think the argument is that he's already proven to be in possession of Child Porn, so there's no harm to his case in providing the rest of the evidence on the remaining drives. I think that's a despicable argument, as I thought "what would a frame-up look like" and if I was doing that to someone, I would have left the keys hidden conspicuously in an accessible place to one drive that I 0wned while in the process of setting this guy up. Now the remaining drives are automatically suspect. The difference now is that they claim they are not asking for his testimony implicating him, since he's already implicated. I just don't see how things are much different now than they were before. You might be right, about the difference between aiding and being a witness. I'm not even sure, though, how to go about proving that a person is in control of a hard drive, encrypted or not. Unless of course you found a thumb drive on their person with the keys, unprotected by a passphrase, and they can immediately be used to decrypt the drives.
btilly 13y ago
My attitude is simple. If they have enough information to incriminate him, then they don't need the password. If they don't, then the 5th applies. After he's been duly convicted by a jury (and NOT by the judge!) and being incriminated is no longer an issue, then they can compel him to decrypt the rest. Or, alternately, they can compel him to decrypt it, but then all of that data is inadmissible in court.
codezero 13y ago
From the article: He can't be compelled to provide a password if the court can't prove that he is the owner of the drive. The work to decrypt one of the drives was done to prove that the drives were his property. If the court is convinced the drives are his property, they can compel him to release the contents of the property. I imagine that: 1) If he doesn't know the password, he would have the first admit ownership of the drive -- this would allow the court to use evidence from the other drive against him. 2) If he doesn't own the drives, or maintains that he does not own them, the court has to rely on forensic evidence they can gather. Their case would be much stronger with more evidence and proof that the drives belong to him.

24 points by nkhumphreys 13y ago

cobrabyte 13y ago

I wonder what the punishment will be for not providing the passwords or decrypting the drives.

DanBlake 13y ago
Its contempt of court I believe- So indefinitely. http://abcnews.go.com/2020/story?id=8101209&page=1 http://abcnews.go.com/2020/story?id=8101209&page=1
- rayiner 13y ago
  Reading between the lines, it seems to me like he was taking advantage of the free medical care in prison ("Meanwhile, the clock was ticking as Beatty Chadwick's health deteriorated. He has been treated for non-Hodgkins Lymphoma, which could recur at any time. "Here he is, 10 years, he knows he's not well," Bobbie told "Primetime.")
venomsnake 13y ago
Contempt of court probably, but raynier can say in details. Interesting thing will be what will happen if you are really unable to decrypt the stuff. If you store the keys away from the drives (lest say ram only server somewhere) that expires if it does not receive confirmation code every 24 hours. And the keys are lost forever this way.
- nicholaides 13y ago
  Would that still be contempt of court? Or destruction of evidence, or whatever. Couldn't it be argued that it's a purposeful destruction of evidence if once they know they are going to court they stop putting in the code to keep the data from being destroyed?

deleted 13y ago

[deleted]

Torgo 13y ago

The difference here seems to be that they successfully decrypted one of his drives and were able to prove that there was child pornography and that the drive belonged to him. At that point, as I understand it legally, he can be compelled to decrypt the drives because they already know he was possessing child pornography on at least one of his drives. It would be different if they did not actually know he had child pornography on his stuff.

kinghajj 13y ago
So they can only force you to violate your 5th amendment rights if they "really really know" that you're guilty anyways?
- danielweber 13y ago
  You are begging the question of whether decrypting a hard drive is a violation of your Fifth Amendment rights.
  - rosser 13y ago
    Your 5th Amendment rights are completely and utterly irrelevant to their decrypting your drive.
    - yebyen 13y ago
      Unless you are the one who is being compelled to decrypt the drive. Producing the key is an act of testimony. You could not state for the record, the passphrase for the key, if you did not know it. Breaking his crypto in some way, to access his files without cooperation, on the other hand... that is no fifth-amendment violation, to be sure. It also doesn't prove that he's been in control or owns the data.
- Torgo 13y ago
  My reference is the case in which an agent saw that there was child pornography on a laptop before the lid was closed and the computer went into suspend; the agent then KNEW the machine contained the offending material, and so they could induce the person to decrypt the machine because the existence of the material was an already established fact and therefore not a violation of self-incrimination.

joezydeco 13y ago

"...after devoting “substantial resources” in the case, FBI agents apparently have been able to decrypt one of the drives. The government argued that because it had found “numerous files which constitute child pornography..." So if they've found the evidence they're looking for, why keep pressing? Because they don't want to spend the extra effort to decrypt the rest and are looking for a plea bargain?

DanBC 13y ago
To see if they can identify the victim and take protective action.
3825 13y ago
>The government argued that because it had found “numerous files which constitute child pornography,” “detailed personal financial records and documents belonging to Feldman,” and “dozens of personal photographs of Feldman," Feldman therefore has “access to and control over” the set of drives. So if the FBI puts my bank statements (PDF) and my photos in a drive along with "some files that constitute child pornography", am I guilty as well? "We found three safes. We opened one of them and found some illegal things in it. We swear we didn't put them there. We also found some financial records and photos belonging to this guy. We didn't put those there either. Pinky swear!"
- DanBC 13y ago
  I'm assuming they would have taken forensic images of the drives, rather than the drives themselves. Tampering with evidence would be stupid. They'd go to jail, they'd risk all previous cases they've been involved in, etc. I guess it happens, but you need a lot more than "I bet they did it".
  - yebyen 13y ago
    Yeah, so I'm convinced that the FBI would not have done the tampering. Now show that no other person has had access to the drives' contents prior to their collection as evidence. He would certainly strengthen the case for that (his ownership and control of the data) if he was able to decrypt the drives himself.

im3w1l 13y ago

AFAIK it is physically possible to construct drives that cannot be backed up and that self destruct if you decrypt with the wrong key (using quantum magic).

_lex 13y ago

I wonder what happens in a case like this if the person is simply unable to remember the password.

general_failure 13y ago
Just click the forgot password link :p

kefka 13y ago

Now, is this "possession" of child pronography crap images that ended up in a Content.IE5 directory, or in Mozilla's cache? Or perhaps, even deleted from those locations? Or are these images that were in C:/windows/fonts/child_porn hidden folder? And that, why is child porn illegal? It is only a picture of a CRIME THAT HAD TAKEN PLACE. Yet, snuff films and other films and pictures that show active murder are completely legal. And considering there is no mens rea for this possession, I believe that it should not be a crime. For the people whom nodded me down, please answer this: why is child porn illegal but videos/pictures of murder NOT illegal?

rmc 13y ago
why is child porn illegal? It is only a picture of a CRIME THAT HAD TAKEN PLACE. An important question is: Does criminalizing the possesion of child porn reduce the chance of those original crimes from happening? I think it does, and I think that's a good reason to ban it. It's also a good way to discourage people who like child porn, to tell them that there is something wrong with them, and that they should not do it.
- thezilch 13y ago
  That's his point. Would criminalizing violent movies reduce chances of violence? Many think it would; so ban those movies? Video Games? Guns? Knives? Rice cookers?
  - jacquesm 13y ago
    You're totally missing it. A CP image is a record of a crime, a violent movie is just a depiction of something that would be a crime except that it isn't real. So criminalizing child porn is of a different degree than criminalizing violent movies, the one is somewhat reasonable the other is ridiculous.
    - lotharbot 13y ago
      In many countries, virtual CP is also illegal. US law specifically includes a clause regarding material that "is, or appears to be, of a minor engaging in sexually explicit conduct" -- http://www.law.cornell.edu/uscode/text/18/2252A http://www.law.cornell.edu/uscode/text/18/2252A section (a)(6) .

spindritf 13y ago

> the Milwaukee-area man now must either ... or must provide an unencrypted copy of the data How will they know if he provided an unencrypted copy of the data or some other data? Also, what if he forgot the password? I have at least one pendrive with an encrypted partition that I wouldn't be able to decrypt. It's empty but that is supposedly unprovable. I should probably reformat it. On the political side, the government is cleverly eroding the right to privacy. Virtually no one will stand up for a paedophile (whether the charge is true doesn't matter) so they get to set a precedence here and use it against whomever they want later.

wpietri 13y ago
I don't see an erosion here. Has the right to privacy ever allowed people to prevent access to something where there is probable cause to think there's evidence of a crime?
- downandout 13y ago
  He isn't "preventing access". He is merely remaining silent on the matter, and has not admitted ownership of the drives or knowledge of the contents or decryption key. It is important to note that the judge never held that forced decryption of drives he owns violates the fifth amendment; he simply held that, at the time of the government's request, there was no evidence that he actually owned and controlled the drives and their contents. The recent discovery of the data on the other drives convinced the judge that the drives do in fact belong to him, and as a result he is now OK with ordering the forced decryption. If you are doing bad things, you probably shouldn't use a decryption key that you could remember. Store that stuff elsewhere.
- mikeash 13y ago
  I think it's a wholly new situation. Previously, you couldn't be compelled to e.g. hand over the combination to a safe, but the police are free to just break into it, once they have a warrant. There's no "breaking into" cryptography, which sets it apart. In any case, I don't see how the Fifth Amendment wouldn't apply here. Maybe we'd prefer that people not be able to take refuge in it for this stuff, but that means amending the Constitution, not ignoring inconvenient parts of it.

t0mas88 13y ago

Can somebody (in the US) be ordered to aid their own prosecution? In the EU it would be against the European convention on human rights as far as I know. So I'm guessing the US constitution protects suspects in the same way?

danielweber 13y ago
You cannot be compelled to testify against yourself. However, you can be compelled to turn over, say, your company's memos that describe how you were planning to build the orphanage out of plastic explosives.
yebyen 13y ago
Yes, it's called the Fifth Amendment to the Constitution here. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- t0mas88 13y ago
  Ok, but not being a witness against oneself is not the same as not being forced to aid in prosecution? Because I think not to aid in your own prosecution is broader, allowing the suspect to refuse this court order. Or was this court order unconstitutional?
  - yebyen 13y ago
    I'm not arguing anymore whether it's constitutional or not. I think the argument is that he's already proven to be in possession of Child Porn, so there's no harm to his case in providing the rest of the evidence on the remaining drives. I think that's a despicable argument, as I thought "what would a frame-up look like" and if I was doing that to someone, I would have left the keys hidden conspicuously in an accessible place to one drive that I 0wned while in the process of setting this guy up. Now the remaining drives are automatically suspect. The difference now is that they claim they are not asking for his testimony implicating him, since he's already implicated. I just don't see how things are much different now than they were before. You might be right, about the difference between aiding and being a witness. I'm not even sure, though, how to go about proving that a person is in control of a hard drive, encrypted or not. Unless of course you found a thumb drive on their person with the keys, unprotected by a passphrase, and they can immediately be used to decrypt the drives.

btilly 13y ago

My attitude is simple. If they have enough information to incriminate him, then they don't need the password. If they don't, then the 5th applies. After he's been duly convicted by a jury (and NOT by the judge!) and being incriminated is no longer an issue, then they can compel him to decrypt the rest. Or, alternately, they can compel him to decrypt it, but then all of that data is inadmissible in court.

codezero 13y ago

From the article: He can't be compelled to provide a password if the court can't prove that he is the owner of the drive. The work to decrypt one of the drives was done to prove that the drives were his property. If the court is convinced the drives are his property, they can compel him to release the contents of the property. I imagine that: 1) If he doesn't know the password, he would have the first admit ownership of the drive -- this would allow the court to use evidence from the other drive against him. 2) If he doesn't own the drives, or maintains that he does not own them, the court has to rely on forensic evidence they can gather. Their case would be much stronger with more evidence and proof that the drives belong to him.