4 ms·

The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permissi

The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights, except in the rare case where you've already admitted that incriminating evidence is stored on that device (thus waiving your right to not self-incriminate). In your white collar example, they're not demanding the suspect turn over the documents, they're demanding the employer turn over the documents, which would imply that a third party already had access to the unencrypted documents and was willing to cooperate with the police. [1] https://news.ycombinator.com/item?id=8430501 https://news.ycombinator.com/item?id=8430501

mike_hearn 12y ago
I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse. WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply. My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.
- maxerickson 12y ago
  The self-incrimination clause in the U.S. Constitution is rooted more in preventing the government from using coercion than it is in concern over the veracity of any testimony obtained through that coercion (of course torturing people into confessing crimes they did not commit is a major historical motivation for the provision, but mechanistically, it is not concerned with truth). When it comes to a locked safe, the U.S. Supreme court still muses about whether revealing the combination to a lock is testimonial. For instance: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/ http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s... http://illinoisjltp.com/timelytech/is-the-battle-over-for-smart-phones-search-warrants-should-not-overcome-biometric-protections/ http://illinoisjltp.com/timelytech/is-the-battle-over-for-sm...
mike_hearn 12y ago
I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse. WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply. My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.
CWuestefeld 12y ago
the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights I don't believe this is quite correct. AIUI, they cannot demand that you hand over the password as such, because that is tangential to the case - it's a third piece of information that has no bearing. But they can sit your down and tell you that you must unlock it for them - enter the password yourself - under penalty of the law.
Spooky23 12y ago
The law is still developing here, but personally, I'd prefer that it develop in a way consistent with long standing principles. The approach the police want is to be capable of spying on everyone, then making a mockery of the justice system by constructing a plausible case based on illegally gathered evidence. I think that the NSA's has a national security responsibility that may justify the extraordinary power that they are invested with. The problem is that their close collaboration with law enforcement is causing their "ends justify the means" culture to leak into law enforcement. How can we expect law enforcement to enforce the law if we're ingraining contempt for the law into their operating process?
geographomics 12y ago
> but basically the cops can't force you to decrypt an encrypted device While true in the US, this isn't the case in all jurisdictions. For example refusing to decrypt or supply keys in the UK can land you up to two years in jail. Good summary here: http://en.wikipedia.org/wiki/Key_disclosure_law http://en.wikipedia.org/wiki/Key_disclosure_law

mike_hearn 12y ago

I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse. WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply. My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.

maxerickson 12y ago
The self-incrimination clause in the U.S. Constitution is rooted more in preventing the government from using coercion than it is in concern over the veracity of any testimony obtained through that coercion (of course torturing people into confessing crimes they did not commit is a major historical motivation for the provision, but mechanistically, it is not concerned with truth). When it comes to a locked safe, the U.S. Supreme court still muses about whether revealing the combination to a lock is testimonial. For instance: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/ http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s... http://illinoisjltp.com/timelytech/is-the-battle-over-for-smart-phones-search-warrants-should-not-overcome-biometric-protections/ http://illinoisjltp.com/timelytech/is-the-battle-over-for-sm...

mike_hearn 12y ago

CWuestefeld 12y ago

the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights I don't believe this is quite correct. AIUI, they cannot demand that you hand over the password as such, because that is tangential to the case - it's a third piece of information that has no bearing. But they can sit your down and tell you that you must unlock it for them - enter the password yourself - under penalty of the law.

Spooky23 12y ago

The law is still developing here, but personally, I'd prefer that it develop in a way consistent with long standing principles. The approach the police want is to be capable of spying on everyone, then making a mockery of the justice system by constructing a plausible case based on illegally gathered evidence. I think that the NSA's has a national security responsibility that may justify the extraordinary power that they are invested with. The problem is that their close collaboration with law enforcement is causing their "ends justify the means" culture to leak into law enforcement. How can we expect law enforcement to enforce the law if we're ingraining contempt for the law into their operating process?

geographomics 12y ago

> but basically the cops can't force you to decrypt an encrypted device While true in the US, this isn't the case in all jurisdictions. For example refusing to decrypt or supply keys in the UK can land you up to two years in jail. Good summary here: http://en.wikipedia.org/wiki/Key_disclosure_law http://en.wikipedia.org/wiki/Key_disclosure_law