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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 be

by 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.
yebyen 13y ago
I don't like it. We had this long discussion on Slashdot when the first decision in favor of Defendant was delivered, where it should be considered wrong under any circumstances to compel a person to testify against himself. The drive they decrypted has child porn and his personal files on it. How does that prove he was the one who encrypted it / put the CP on it? How does that prove anything about the remaining drives that they've not been able to decrypt? http://slashdot.org/comments.pl?sid=3681715&cid=43537739 http://slashdot.org/comments.pl?sid=3681715&cid=43537739 It seems like the only effect of this order would be to guarantee he's going to have either a guilty verdict or a contempt charge, even if it's a total frame-up and he never had the keys to begin with. If the FBI could really get into some of "his" encrypted files without any cooperation, who's to say that Frame-up Guy didn't also get into his (real) encrypted files, re-crypt the drive, and put incriminating evidence on it, next to some personal information to seal the deal? Who wrote the requirement such that he is required to access the drives only 'while the authorities turn their backs' -- what can be the actual value of that? He's being compelled to testify against himself. By either providing the keys or decrypting the drives, he would be proving that he was in (at least shared, not necessarily exclusive) control of their content. The FBI successfully decrypting the drives and finding CP does not prove anything additionally regarding the ownership. I understand it would be very hard to prove that much with the very high bar I'm setting, but I think it's justified.
- Torgo 13y ago
  I wrote a long post exploring it but then realized your frame-up statement was more interesting. If I wanted to extralegally grind somebody into the dirt, maybe what I would do is deposit an encrypted drive with a shitty password, some personal files of the defendant, and some illegal files. Then I would submit this as court's evidence and use it to compel him to decrypt a drive that was actually under his control that never in a million years could we crack without his help. If he doesn't cooperate, we can hold him for eternity under contempt of court. If this decision stands, it could be used by unscrupulous law enforcement to socially engineer the legal system into routing around self-incrimination prohibition. Obviously this requires fabricating and planting evidence against a defendant, but history has shown this happens. So, I'd say it's a serious risk if this ruling stands.

by Torgo 13y ago

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.

yebyen 13y ago

I don't like it. We had this long discussion on Slashdot when the first decision in favor of Defendant was delivered, where it should be considered wrong under any circumstances to compel a person to testify against himself. The drive they decrypted has child porn and his personal files on it. How does that prove he was the one who encrypted it / put the CP on it? How does that prove anything about the remaining drives that they've not been able to decrypt? http://slashdot.org/comments.pl?sid=3681715&cid=43537739 http://slashdot.org/comments.pl?sid=3681715&cid=43537739 It seems like the only effect of this order would be to guarantee he's going to have either a guilty verdict or a contempt charge, even if it's a total frame-up and he never had the keys to begin with. If the FBI could really get into some of "his" encrypted files without any cooperation, who's to say that Frame-up Guy didn't also get into his (real) encrypted files, re-crypt the drive, and put incriminating evidence on it, next to some personal information to seal the deal? Who wrote the requirement such that he is required to access the drives only 'while the authorities turn their backs' -- what can be the actual value of that? He's being compelled to testify against himself. By either providing the keys or decrypting the drives, he would be proving that he was in (at least shared, not necessarily exclusive) control of their content. The FBI successfully decrypting the drives and finding CP does not prove anything additionally regarding the ownership. I understand it would be very hard to prove that much with the very high bar I'm setting, but I think it's justified.

Torgo 13y ago
I wrote a long post exploring it but then realized your frame-up statement was more interesting. If I wanted to extralegally grind somebody into the dirt, maybe what I would do is deposit an encrypted drive with a shitty password, some personal files of the defendant, and some illegal files. Then I would submit this as court's evidence and use it to compel him to decrypt a drive that was actually under his control that never in a million years could we crack without his help. If he doesn't cooperate, we can hold him for eternity under contempt of court. If this decision stands, it could be used by unscrupulous law enforcement to socially engineer the legal system into routing around self-incrimination prohibition. Obviously this requires fabricating and planting evidence against a defendant, but history has shown this happens. So, I'd say it's a serious risk if this ruling stands.