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Why is that a problem? Wouldn't the burden of proof fall on the employer to give evidence that something in the encrypted partition belongs to the business?

by Nimi 13y ago

rayiner 13y ago
First, burden of proof is not a concept that's relevant before criminal charges or a civil complaint have been filed. You don't need to prove that there is something in the encrypted partition to bring charges. Circumstantial evidence is enough. Second, in an actual trial the author would have to unlock the encrypted partition. There is no right of privacy against a court. If there is disagreement about what's in a box, people aren't going to sit around arguing about burdens of proof and burdens of production. The court is going to order the box be opened and the issue resolved definitively.
- lightbritefight 13y ago
  Therein is the current question. This is not a box. It is a metaphorical box, that can only be opened by information. This information is only contained in the head of the defendant. Say there is something incriminating in the box. The 5th amendment protects you from being compelled to self incriminate. So, the court could not legally order the box opened, without providing immunity to the defendant. Your reasoning and my reasoning are the current modes of thought about encryption in a legal context. Neither has been proved correct in that context.
  - rayiner 13y ago
    Right, 5th amendment is an issue on the criminal side (not the civil side), and the case law is mixed on whether giving up a decryption password is more like giving up a key to a box (which the court can order you to do), or giving testimony protected by the 5th.
- Nimi 13y ago
  So, if I'm getting this straight: if I'm an employer who's curious to know what's inside an encrypted partition on one of my contractors' laptops, I can simply call the police, say I suspect there's company data there, the police and prosecution don't need any more evidence to bring this to trial, and then the judge will likely order said contractor to decrypt the partition? Then if it's just his personal porn collection, everyone shrugs and life goes on?
  - rayiner 13y ago
    You're throwing out all of the context. If you call the police out of the blue like that, they'll ignore you. If you call them with respect to an employee who was fired and "lost" certain property, that's enough to at least investigate.
    - Nimi 13y ago
      I see. Thanks for the clarification. I still find it troubling that there's no burden of proof to violating someone's privacy before the court (there also doesn't seem to be any guarantee that decrypting the partition before the court would be done behind closed doors). But I guess there are many privacy issues not currently well addressed by U.S. laws...

Why is that a problem? Wouldn't the burden of proof fall on the employer to give evidence that something in the encrypted partition belongs to the business?

by Nimi 13y ago

Why is that a problem? Wouldn't the burden of proof fall on the employer to give evidence that something in the encrypted partition belongs to the business?

rayiner 13y ago

First, burden of proof is not a concept that's relevant before criminal charges or a civil complaint have been filed. You don't need to prove that there is something in the encrypted partition to bring charges. Circumstantial evidence is enough. Second, in an actual trial the author would have to unlock the encrypted partition. There is no right of privacy against a court. If there is disagreement about what's in a box, people aren't going to sit around arguing about burdens of proof and burdens of production. The court is going to order the box be opened and the issue resolved definitively.

lightbritefight 13y ago
Therein is the current question. This is not a box. It is a metaphorical box, that can only be opened by information. This information is only contained in the head of the defendant. Say there is something incriminating in the box. The 5th amendment protects you from being compelled to self incriminate. So, the court could not legally order the box opened, without providing immunity to the defendant. Your reasoning and my reasoning are the current modes of thought about encryption in a legal context. Neither has been proved correct in that context.
- rayiner 13y ago
  Right, 5th amendment is an issue on the criminal side (not the civil side), and the case law is mixed on whether giving up a decryption password is more like giving up a key to a box (which the court can order you to do), or giving testimony protected by the 5th.
Nimi 13y ago
So, if I'm getting this straight: if I'm an employer who's curious to know what's inside an encrypted partition on one of my contractors' laptops, I can simply call the police, say I suspect there's company data there, the police and prosecution don't need any more evidence to bring this to trial, and then the judge will likely order said contractor to decrypt the partition? Then if it's just his personal porn collection, everyone shrugs and life goes on?
- rayiner 13y ago
  You're throwing out all of the context. If you call the police out of the blue like that, they'll ignore you. If you call them with respect to an employee who was fired and "lost" certain property, that's enough to at least investigate.
  - Nimi 13y ago
    I see. Thanks for the clarification. I still find it troubling that there's no burden of proof to violating someone's privacy before the court (there also doesn't seem to be any guarantee that decrypting the partition before the court would be done behind closed doors). But I guess there are many privacy issues not currently well addressed by U.S. laws...