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> Encryption [...] is "a good thing," Comey has said, even if he wants the government to have the ability [to] get around it. Doesn't the government already ha

by oofabz 11y ago

> Encryption [...] is "a good thing," Comey has said, even if he wants the government to have the ability [to] get around it. Doesn't the government already have the ability to get around it, without compromising security? They can subpoena your password or private key. If this is not good enough for him, that means he wants the ability to decrypt messages without judicial process. Like messages in other countries where the FBI is prohibited from operating. Or mass data collection, reading the messages of millions of innocent people in an attempt to catch one criminal. I don't want the FBI to do either of these things.

kinghajj 11y ago
AFAIK, it's still not settled whether cryptographic keys/passwords/passphrases can be subpoena'd. Existing case law from physical security distinguishes between keys--like the one to your door or a cabinet--from combinations--like those to a safe. The state can legally demand the former, as the law views them as physical evidence as any other that may be rightly relinquished with a proper warrant. The latter, however, are the contents of one's mind, and as such requiring their divulgence runs afowl of 1st amendment protection of free speech and/or 4th amendment protection against self-incrimination. To me, it seems obvious that encryption 'keys' are much more like 'combinations', and were only called 'keys' as a word play (like many concepts in IT). Prosecutors, however, see that word and go "hey, wait a second, we're entitled to those!!"
csandreasen 11y ago
There are a few federal cases that say otherwise. In US v. Kirschner[1], it was ruled that forcing the defendant to reveal his password through a grand jury subpoena was a violation of his 5th Amendment rights. The prosecution used a loophole for In re Boucher[2]: though the defendant still had a 5th Amendment right to not reveal his password, he was required to decrypt his hard drive in order to produce files under subpoena that he had already admitted were in his possession. Because he had already incriminated himself by revealing to a border patrol agent that his laptop contained child pornography, he no longer had a 5th Amendment right against self-incrimination for the charges of possessing child pornography. As I mentioned in a post above[3], in the case against Ramona Fricosu she didn't have a 5th Amendment right to not produce her password partly because she was granted immunity for any evidence that would have been collected from it (but her husband would not be). If you have evidence of a crime, you are required to provide to the courts when requested. You have the right to not provide evidence or testimony which incriminates yourself - if you cannot be incriminated for it, you no longer have the right to withhold it. [1] http://cyb3rcrim3.blogspot.com/2010/04/passwords-and-5th-amendment-privilege.html http://cyb3rcrim3.blogspot.com/2010/04/passwords-and-5th-ame... [2] http://cyb3rcrim3.blogspot.com/2009/03/5th-amendment-bummer.html http://cyb3rcrim3.blogspot.com/2009/03/5th-amendment-bummer.... [3] https://news.ycombinator.com/item?id=9662945 https://news.ycombinator.com/item?id=9662945

by oofabz 11y ago

kinghajj 11y ago

AFAIK, it's still not settled whether cryptographic keys/passwords/passphrases can be subpoena'd. Existing case law from physical security distinguishes between keys--like the one to your door or a cabinet--from combinations--like those to a safe. The state can legally demand the former, as the law views them as physical evidence as any other that may be rightly relinquished with a proper warrant. The latter, however, are the contents of one's mind, and as such requiring their divulgence runs afowl of 1st amendment protection of free speech and/or 4th amendment protection against self-incrimination. To me, it seems obvious that encryption 'keys' are much more like 'combinations', and were only called 'keys' as a word play (like many concepts in IT). Prosecutors, however, see that word and go "hey, wait a second, we're entitled to those!!"

csandreasen 11y ago

There are a few federal cases that say otherwise. In US v. Kirschner[1], it was ruled that forcing the defendant to reveal his password through a grand jury subpoena was a violation of his 5th Amendment rights. The prosecution used a loophole for In re Boucher[2]: though the defendant still had a 5th Amendment right to not reveal his password, he was required to decrypt his hard drive in order to produce files under subpoena that he had already admitted were in his possession. Because he had already incriminated himself by revealing to a border patrol agent that his laptop contained child pornography, he no longer had a 5th Amendment right against self-incrimination for the charges of possessing child pornography. As I mentioned in a post above[3], in the case against Ramona Fricosu she didn't have a 5th Amendment right to not produce her password partly because she was granted immunity for any evidence that would have been collected from it (but her husband would not be). If you have evidence of a crime, you are required to provide to the courts when requested. You have the right to not provide evidence or testimony which incriminates yourself - if you cannot be incriminated for it, you no longer have the right to withhold it. [1] http://cyb3rcrim3.blogspot.com/2010/04/passwords-and-5th-amendment-privilege.html http://cyb3rcrim3.blogspot.com/2010/04/passwords-and-5th-ame... [2] http://cyb3rcrim3.blogspot.com/2009/03/5th-amendment-bummer.html http://cyb3rcrim3.blogspot.com/2009/03/5th-amendment-bummer.... [3] https://news.ycombinator.com/item?id=9662945 https://news.ycombinator.com/item?id=9662945