U.S. Court Extends Fifth Amendment to Encrypted Data

[Damien Granz]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"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"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

Yeah, but this would be akin to the feds getting a warrant to search your house, but not being able to get in because you had a really sweet indestructible front door, and then being told that asking you to unlock the vault for them is self incrimination.

You can't just copy-paste the 5th amendment to this case as written because it creates, effectively, the scenario above.

You need to realize there are crimes, and will continue to be crimes invented in the future as more and more of our day to day lives are done online, that are possible to do entirely on a computer.

Not allowing the police to be able to search your computer even with a warrant, is, again, exactly the same saying that if you had a good enough lock on your front door, the police are out of luck.

This isn't some case of warrant-less wiretapping or invasion of privacy. Your computer isn't your brain, it's evidence.

Can I hide evidence of my wrongdoing in a really awesome safe, and when they can't enter the safe, get away with a crime? Because that's basically what this is.

You fail completely to see the more subtle and frightening implications in this.

By requiring him to decode a drive, the prosecution are presuming without having proven that
1) The hard drive contains real data
2) The data that may exist is incriminating and / or at least subject to the subpoena
3) That he was the one who placed the data on the disk, and not someone else
4) And that therefore, he would know the password and also
5) He hasn't forgotten or lost the password

Essentially, if he decodes the drive he has proven the entire case the prosecution would otherwise have to prove to a jury. It's like the court ordering him to prove himself guilty and then jailing him for failing to do so.

This violates far more then the fifth amendment. This violates the presumption of innocence.

The above is analogous to accusing a man of murder and then jailing him for contempt of court for 'failing to show where he buried the body' without having yet proved a murder case.

Or, for that matter, accusing someone of witchcraft and drowning them to prove they are not a witch.

Um, a police investigation doesn't presume you're innocent. It's gathering evidence to prove you're guilty.

Saying that looking for evidence is a violation of presumption of innocence basically makes the whole justice system entirely useless. The world created by what you're presupposing means that police officers can only do anything about a crime if they happen to see it by pure chance.

For your murder analogy, it'd be more similar to a man having his basement sealed off with some magically indestructible door, and the police having a warrant to look in that basement, and you being told "Too bad, your warrant is useless because this door is really, really sweet".

The fact of that matter is, that your way of doing things effectively means that, if a criminal is even REASONABLY intelligent, no crime against him can ever, ever, ever be prosecuted, no matter how blatant or no matter how good a warrant to search for evidence the police gets.

As the quoted person pointed out, something like Enron would had been impossible to prosecute if the Enron executives just downloaded TrueCrypt.

 

[Athinira]

Yeah, but this would be akin to the feds getting a warrant to search your house, but not being able to get in because you had a really sweet indestructible front door, and then being told that asking you to unlock the vault for them is self incrimination.

You can't just copy-paste the 5th amendment to this case as written because it creates, effectively, the scenario above.

And you can't just copy paste a fictious real-world scenario (or rather, science-fictional scenario, since you fabricated a door that doesn't exist).

But let me pick your example apart.

The reason your example doesn't hold up is because unlike encrypted content, your house carries a name-tag and can positively identified. Encrypted content does not carry a name tag even if it resides on your computer, (because it can have been created by previous users, various software including Ransomware or even hackers/botnets, and therefore it cannot be safely assumed it was encrypted by you and that you are capable of decrypting it or even knows what it contains). In addition, it might not even be possible to even identify it as encrypted content since it looks like random data. A seized hard drive filled with random data might be an encrypted container, or it might be a hard drive that have been securely erased (overwritten several time).

The reason the feds can get a warrant for your house is because, well, it's YOUR house, and it can be safely established that you control it and are responsible for what's inside, as well as you have the means to open it. Encrypted data, however, is not necessarily something you control, evne if they reside on your equipment, and it cannot be positively proven that it's even encrypted data to begin with.

Terrible analogy is terrible.

You need to realize there are crimes, and will continue to be crimes invented in the future as more and more of our day to day lives are done online, that are possible to do entirely on a computer.

And you need to realize that criminals can still get away with this by using hidden volumes. It's impossible to prove the existence of a hidden encryption volume, so even if courts could compel people to give up encryption keys, criminals could still use hidden volumes and escape justice.

It's an impossible system to beat.

Not allowing the police to be able to search your computer even with a warrant, is, again, exactly the same saying that if you had a good enough lock on your front door, the police are out of luck.

The police being unable to understand the data on the computer does not mean they are unable to search it. Maybe not all of the content is encrypted. Maybe the encryption uses a weak password that they can crack. Like someone else said earlier: If the police search your home and find a diary written in a code language, it's not your job to translate it for them, therefore aiding in the investigation against you (and at the same time, indirectly admitting that you wrote the coded text).

And like i said, unlike your front door, encryption does not carry a name-tag. A court can't grant a warrant to 'your' encrypted content if it's not within your control. It can't grant a warrant for encrypted data either if it's not encrypted data to begin with (which might not be possible to ascertain).

This isn't some case of warrant-less wiretapping or invasion of privacy. Your computer isn't your brain, it's evidence.

...which doesn't imply in any way that it's your job to help the government understand the data on the computer.

It's the prosecutions job to use the evidence they have available, not yours. If they can't read or understand the evidence: tough luck.

But interestingly, since you brought up the subject of wiretapping, i would like to remind you that another thing the government are unable to do is wiretap encrypted phone-conversations, like for example a Skype-conversation. It's a product of the digital age. The prosecution just have to deal with it.

Can I hide evidence of my wrongdoing in a really awesome safe, and when they can't enter the safe, get away with a crime? Because that's basically what this is.

If they can't prove that the safe exists to begin with or it's even yours, then it's a moot point at any rate.

And like i said, hidden volumes still beats the system. To use your ridiculous real-world analogies, a hidden volume is like having a safe that you can teleport into another dimension. Not only can the government not get into it, but they also cannot prove that it exists in any way possible unless you confess to it existing. It's an impossible system to beat (beyond resorting to torture), so the government will just have to deal with it. It's that simple.

 

[CM156_v1legacy]

Yeah, but this would be akin to the feds getting a warrant to search your house, but not being able to get in because you had a really sweet indestructible front door, and then being told that asking you to unlock the vault for them is self incrimination.

Actually, it's more akin to the feds finding the journal I keep written in a code and then demanding I translate what's written. Big difference.

Athinira has already explained why they're not the same to you. And Athinira: I'm impressed with how well you know case law. My hat is off to you.

 

[Erttheking]

Well, I'm an American and that IS how that law works...so good I guess.

 

[RhombusHatesYou]

And like i said, hidden volumes still beats the system. To use your ridiculous real-world analogies, a hidden volume is like having a safe that you can teleport into another dimension. Not only can the government not get into it, but they also cannot prove that it exists in any way possible unless you confess to it existing. It's an impossible system to beat (beyond resorting to torture), so the government will just have to deal with it. It's that simple.

According to a Forensic Data Analysist I know, there are certain 'markers' to look for which can in turn uncover data footprints indicating a hidden volume exists... however, it's a fairly time intesive process, can have varying levels of 'success' and even when it works 100% (which is rare) it still leaves you with the problem of dealing with it... suffice to say that it's a lot of effort for very little return so it's rarely done.

To go with the transdimensional safe analogy, it's like using a bunch of diffrerent detection equipment to find, at best, a safe shaped distortion/anomoly BUT nothing else like how to get to it or open it.

 

[Athinira]

According to a Forensic Data Analysist I know, there are certain 'markers' to look for which can in turn uncover data footprints indicating a hidden volume exists... however, it's a fairly time intesive process, can have varying levels of 'success' and even when it works 100% (which is rare) it still leaves you with the problem of dealing with it... suffice to say that it's a lot of effort for very little return so it's rarely done.

To go with the transdimensional safe analogy, it's like using a bunch of diffrerent detection equipment to find, at best, a safe shaped distortion/anomoly BUT nothing else like how to get to it or open it.

If your friend is talking about being able to analyze the "free space" on the encrypted container, and determining that the free space - which should look like random data - isn't totally random, then that is actually a flaw in the encryption algorithm being used not making encrypted data look entirely like random data (aka. patterns are visible). The problem can be solved by using a different algorithm that doesn't have that vulnerability. TrueCrypt itself not only supports 3 different encryption algorithms (AES, Twofish, Serpent), but allows those to be used in cascade (meaning you use several algorithms to encrypt the data), so switching to a different algorithm is easy. However, i have yet to hear about any of those three algorithms having that particular weakness. It's worth noting btw, that if that weakness actually exists, it would not only allow you to discover if there is a secret volume, but it would then also allow you to discover if the REAL (outer) container is either encrypted or just random data (which i have also yet to hear about happen).

I think you need to ask your friend to explain himself. Of all the cryptoanalytical attacks i have read or heard about, i have never heard about one being able to discover secret volumes, nor have i heard about one that on the technical level allows you to determine that a container encrypted with modern encryption algorithms isn't random data.

Unless the encryption algorithm suffers from the mentioned vulnerability, the only way to technically discover a hidden volume (assuming you have the password to the non-hidden part of the volume) is to check what sectors have changed in the file/partition between uses of the hidden volume. If you, as the attacker, are able to do cryptoanalysis on a truecrypt container with a hidden volume BETWEEN uses of the hidden volume, you will be able to see that sectors in the "free space" of the outer volume (which actually isn't free space, but rather the hidden volume) have changed, which means that there is either a hidden volume, or that someone overwrote the "free space" at some point and then deleted the content afterwards. But like i said, that requires you to have physical access to the encrypted container TWICE, and it has to be between uses of the hidden volume.

I suspect, however, that what your friend might be talking about is in fact an outdated weakness. Older versions of TrueCrypt had a flaw that potentially allowed a hidden volume to be discovered (i can't remember if it was just a hidden volume or a hidden operating system). This was fixed around 2½-3 years ago. I don't know the specifics of the vulnerability, but from my understanding, it was related to TrueCrypt, not the algorithms used.

Edit:
Another possibility is that your friend is talking about mounting a hidden volume using a non-hidden operating system. When you use a file system browsing files in windows, windows might leave traces of what files you've used, seen or interacted with on the computer, including those on a hidden volume. This is a security flaw within the operating system, not in the encryption software or algorithm.

The solution in that case is to use a hidden operating system (by the same principle as hidden volumes), and only ever mount hidden volumes when using the hidden operating system. Since the "traces" of the hidden volumes being mounted or only left inside the hidden operating system, they cannot be located without access to the hidden operating system (which itself is impossible to prove exists). This, btw, is detailed in the TrueCrypt documentation of Security Requirements for Hidden Volumes [http://www.truecrypt.org/docs/?s=hidden-volume-precautions].

Btw, please feel free to link this post to your friend. I would love to hear his comments on this

 

[targren]

If you are ordered by a court to produce a printed document you shred it not only are you guilty of contempt the shred document can be put together and used in evidence against you. Why should the process of encryption be treated any different from shredding?

That's only if you shred the document AFTER it's subpoenaed/demanded. If you shred it before there are any proceedings, you haven't committed destruction of evidence nor contempt of court. Otherwise, paper shredders would be illegal.

It is also clear that he was ordered to by a court after due process.

So if he was arrested, arraigned, and dragged into court, then the judge demanded that he confess, that's okay? No, because the right against self incrimination is part of due process, and this court has decided that you are wrong when you say that.

 

[Daemonate]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"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"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

Yeah, but this would be akin to the feds getting a warrant to search your house, but not being able to get in because you had a really sweet indestructible front door, and then being told that asking you to unlock the vault for them is self incrimination.

You can't just copy-paste the 5th amendment to this case as written because it creates, effectively, the scenario above.

You need to realize there are crimes, and will continue to be crimes invented in the future as more and more of our day to day lives are done online, that are possible to do entirely on a computer.

Not allowing the police to be able to search your computer even with a warrant, is, again, exactly the same saying that if you had a good enough lock on your front door, the police are out of luck.

This isn't some case of warrant-less wiretapping or invasion of privacy. Your computer isn't your brain, it's evidence.

Can I hide evidence of my wrongdoing in a really awesome safe, and when they can't enter the safe, get away with a crime? Because that's basically what this is.

You fail completely to see the more subtle and frightening implications in this.

By requiring him to decode a drive, the prosecution are presuming without having proven that
1) The hard drive contains real data
2) The data that may exist is incriminating and / or at least subject to the subpoena
3) That he was the one who placed the data on the disk, and not someone else
4) And that therefore, he would know the password and also
5) He hasn't forgotten or lost the password

Essentially, if he decodes the drive he has proven the entire case the prosecution would otherwise have to prove to a jury. It's like the court ordering him to prove himself guilty and then jailing him for failing to do so.

This violates far more then the fifth amendment. This violates the presumption of innocence.

The above is analogous to accusing a man of murder and then jailing him for contempt of court for 'failing to show where he buried the body' without having yet proved a murder case.

Or, for that matter, accusing someone of witchcraft and drowning them to prove they are not a witch.

Um, a police investigation doesn't presume you're innocent. It's gathering evidence to prove you're guilty.

Saying that looking for evidence is a violation of presumption of innocence basically makes the whole justice system entirely useless. The world created by what you're presupposing means that police officers can only do anything about a crime if they happen to see it by pure chance.

For your murder analogy, it'd be more similar to a man having his basement sealed off with some magically indestructible door, and the police having a warrant to look in that basement, and you being told "Too bad, your warrant is useless because this door is really, really sweet".

The fact of that matter is, that your way of doing things effectively means that, if a criminal is even REASONABLY intelligent, no crime against him can ever, ever, ever be prosecuted, no matter how blatant or no matter how good a warrant to search for evidence the police gets.

As the quoted person pointed out, something like Enron would had been impossible to prosecute if the Enron executives just downloaded TrueCrypt.

Yes, and you are in no way required to assist the police in incriminating yourself. "looking for evidence" is quite fine. Happens all the time. "assuming that evidence unproved to exist in fact exists, and then ordering the accused to magically produce it for you" is not.

Once again, you don't understand the degree to which the real-world analogy differs from the cryptographic situation.
To make your magic door analogy fit the situation, you'd have to include the fact that the basement is a basement in a house with many people in it, all of whom had access to it. Who put the magic door on the basement? Who has the key? How do you know there's anything inside since you can't get in? If there does happen to be stuff inside, who does it belong to? How do you know it's the accused's?

Actually it's potentially worse, as in the case of a potential hidden volume, the magic door and it's basement are *invisible* to human detection, and its existence is a rumour or a guess to start with.

If the cops happen to find the key and the basement, they are free to open the door, but if they don't find the basement, let alone its key, how is it up to the maybe totally innocent person to find a way to do it for them? Especially since as far as the court knows, it may well be physically impossible to do so. Then you're left imprisoning people because the DA feels frustrated at being bad at his job.

 

[RhombusHatesYou]

I would love to hear his comments on this

Talked to him earlier tonight about it over a bottle of whiskey... he said most of the stuff I'd recalled was old stuff we'd talked about ages ago and I should shut my hole if I'm not going to stay up to date on shit, then threw an ice cube at my head and reminded me that with good modern crypto systems the only potential flaw was the people using them.

He did say that there is one theoretical weakness in modern cryptosystems and that's that they make the encrypted data too... 'too random' is what my mate said. That the sheer lack of any pattern becomes statistically anomalous... Of course that's only useful for identifying potentially encrypted blocks of data and even getting that far is a massive and expensive undertaking which is why it's only a theoretical weakness... much to the disappointment of unemployed statisticians everywhere, I guess. Not to mention it would still leave the problem of decrypting the data.

 

[Daemonate]

Athinira, doesn't the finding in United States v. Fricosu contravert some of what you claim? Not that case specifically perhaps, but parts of the line of logic and precedent used to produce the finding?

For example: "...the defendant?s production was not necessary to authenticate the drive because he had already admitted possession of the computer..." http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

Especially in this particular case, however, what would have been the court's response to a claim by Ms. Friscou that she could not remember, and/or had lost/destroyed the only written copy of, the password needed to decrypt?

Perhaps I am reading it wrong, but then just admitting one possessed / owned a device at some point in time would be then halfway to determining foregone conclusion and the requirement of producing the contents? Surely this does not take into account accidental or malicious intrusion, misuse by another, content stored.

I have personal experience with this as I once knew of someone who received a disk from another person, supposedly blank, which turned out to have questionable content. They could not be sure where the content originated from, and the other party claimed no knowledge of the content (it was from a business machine several years old, which many people had access to), so they destroyed the disks.

If for example, they had instead failed to inspect the disks and yet blithely installed them in their computer, which they freely admitted ownership of, could they have been compelled to grant access to files that they did not know existed, that did not belong to them, and that they may have had no physical way to produce (if they required a password to view)?

 

[zumbledum]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"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"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

Well first we have to have context. ie what system is this part of and its criminal justice system , because we dont have a an inquisitorial system but an adversarial one. ie its about making a case not about finding out the truth of what happened, its a parallel to the right of silence and the presumption of innocence, because the police are not looking to find the truth but put forward a case to be tried.

Now we have systems were law enforcement can acquire evidence to make a case through other invasions of privacy, wire taps, surveillance, mail interception etc but there is currently no law for providing encryption, there is for bank details and all other records.

why?

well American Law is basically English law that is where it was imported from and that is basically from the Magna Carter which was written in 1215.

and there's the problem. 1215 they didn't have the internets back then so there isn't a law for it. Its how our systems work , and just like all the other technological advances that allow criminals to operate outside of the reach of the law it will get legislation added to it now its become a problem. a good example would be how the rules changed when pre paid cell phones revolutionised the drug and organised crime.

This current case has nothing to do with the problems of self incrimination and is nothing to do with why you have the 5th amendment this is a guy hiding evidence behind a loop hole in the law.

Its no victory for freedom and liberty its a win for the criminal side, the danger to liberty is what happens next, the bill that closes this loophole will be put forward to give the law enforcement agencies the power to acquire evidence . the risk being its too far reaching.

so really the people that love freedom of speech and liberty should be worried about this because it now means some aspect of those rights needs to go to allow the law to function.

 

[CM156_v1legacy]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"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"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

Well first we have to have context. ie what system is this part of and its criminal justice system , because we dont have a an inquisitorial system but an adversarial one. ie its about making a case not about finding out the truth of what happened, its a parallel to the right of silence and the presumption of innocence, because the police are not looking to find the truth but put forward a case to be tried.

Now we have systems were law enforcement can acquire evidence to make a case through other invasions of privacy, wire taps, surveillance, mail interception etc but there is currently no law for providing encryption, there is for bank details and all other records.

why?

well American Law is basically English law that is where it was imported from and that is basically from the Magna Carter which was written in 1215.

and there's the problem. 1215 they didn't have the internets back then so there isn't a law for it. Its how our systems work , and just like all the other technological advances that allow criminals to operate outside of the reach of the law it will get legislation added to it now its become a problem. a good example would be how the rules changed when pre paid cell phones revolutionised the drug and organised crime.

This current case has nothing to do with the problems of self incrimination and is nothing to do with why you have the 5th amendment this is a guy hiding evidence behind a loop hole in the law.

Its no victory for freedom and liberty its a win for the criminal side, the danger to liberty is what happens next, the bill that closes this loophole will be put forward to give the law enforcement agencies the power to acquire evidence . the risk being its too far reaching.

so really the people that love freedom of speech and liberty should be worried about this because it now means some aspect of those rights needs to go to allow the law to function.

I believe Athinira has already addressed your issues. But follow me on this thought experiment: I, in fact, keep a journal of sorts. I write in a weird series of symbols that equate to code. I don't have a key written down anywhere because there isn't one. The rules on what I use keep changing. Let's suppose the feds have a warrant for my house for some unrelated charge. They find this journal. Can they demand I translate it or give them a key (which, as I've said, doesn't exist, because the context and syntax rules keep changing)? They've already pointed out how a physical object and something stored in the mind are not quite the same.

Simple yes or no question: can the feds force me to translate what I wrote, for them to build a case against me? Y/N

The answer, according to case law, is no. They're allowed the data. I don't have to, however, help them make sense of it. And before you try bringing up the safe analogy, note that it's already been shown how that isn't the same.

onus probandi falls with the DA.

 

[zumbledum]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"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"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

Well first we have to have context. ie what system is this part of and its criminal justice system , because we dont have a an inquisitorial system but an adversarial one. ie its about making a case not about finding out the truth of what happened, its a parallel to the right of silence and the presumption of innocence, because the police are not looking to find the truth but put forward a case to be tried.

Now we have systems were law enforcement can acquire evidence to make a case through other invasions of privacy, wire taps, surveillance, mail interception etc but there is currently no law for providing encryption, there is for bank details and all other records.

why?

well American Law is basically English law that is where it was imported from and that is basically from the Magna Carter which was written in 1215.

and there's the problem. 1215 they didn't have the internets back then so there isn't a law for it. Its how our systems work , and just like all the other technological advances that allow criminals to operate outside of the reach of the law it will get legislation added to it now its become a problem. a good example would be how the rules changed when pre paid cell phones revolutionised the drug and organised crime.

This current case has nothing to do with the problems of self incrimination and is nothing to do with why you have the 5th amendment this is a guy hiding evidence behind a loop hole in the law.

Its no victory for freedom and liberty its a win for the criminal side, the danger to liberty is what happens next, the bill that closes this loophole will be put forward to give the law enforcement agencies the power to acquire evidence . the risk being its too far reaching.

so really the people that love freedom of speech and liberty should be worried about this because it now means some aspect of those rights needs to go to allow the law to function.

I believe Athinira has already addressed your issues. But follow me on this thought experiment: I, in fact, keep a journal of sorts. I write in a weird series of symbols that equate to code. I don't have a key written down anywhere because there isn't one. The rules on what I use keep changing. Let's suppose the feds have a warrant for my house for some unrelated charge. They find this journal. Can they demand I translate it or give them a key (which, as I've said, doesn't exist, because the context and syntax rules keep changing)? They've already pointed out how a physical object and something stored in the mind are not quite the same.

Simple yes or no question: can the feds force me to translate what I wrote, for them to build a case against me? Y/N

The answer, according to case law, is no. They're allowed the data. I don't have to, however, help them make sense of it. And before you try bringing up the safe analogy, note that it's already been shown how that isn't the same.

onus probandi falls with the DA.

Simple answer is NO. as you say it is for the prosecution to prove (im English i assume DA is district attorney? which i am also assuming is the same sort of thing as the CPS crown prosecution service)

Im not sure the law is exaclty mirrored but im speaking about UK law here, if they say executed a warrant to search your premises and found unrelated things they would have the right to take them and fresh prosecutions would arise based on that evidence, if they find white powder they can test it for cocaine. find a gun they can run it against ballistic records, find evidence of tax fraud or whatever anything illegal or for illegal use they can take and use, they wouldnt have the right to make you say you were guilty of anything it is still for them to prove in each case.
we agree totally this is all fine correct and as it should be.

My point is there is a test drugs , firearms, financial reports, you can run checks on bank statements financial records etc but there is no system for encryped data. if you had these items in a safe you would have to open it , behind a locked door you would have to open it. it is wrong for them to demand you provide any incriminating evidence but they do have the right of access. and thats why this case stuck there is a clear conflict. but they do still have the right to know what that data says if they have the warrant. the means to identify the possible infraction of law rested solely within the accused's power. and that is the bit i suspect that will get altered.

The likely outcome of this is a change to the way encryption is allowed and companies that provide encryption will have to provide keys to de crypt it under warrant to.

That was my point, the case was right but the law is currently wrong there is no system to acquire the information without violating the 5th amendment. But the 5th like the right to silence and burden of proof are there to make it fair. Not to provide immunity. and thats what will change.

so as i say this is no victory for freedom but a warning that the laws about to get upgraded and those freedoms will be eroded.

 

[CM156_v1legacy]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"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"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

Well first we have to have context. ie what system is this part of and its criminal justice system , because we dont have a an inquisitorial system but an adversarial one. ie its about making a case not about finding out the truth of what happened, its a parallel to the right of silence and the presumption of innocence, because the police are not looking to find the truth but put forward a case to be tried.

Now we have systems were law enforcement can acquire evidence to make a case through other invasions of privacy, wire taps, surveillance, mail interception etc but there is currently no law for providing encryption, there is for bank details and all other records.

why?

well American Law is basically English law that is where it was imported from and that is basically from the Magna Carter which was written in 1215.

and there's the problem. 1215 they didn't have the internets back then so there isn't a law for it. Its how our systems work , and just like all the other technological advances that allow criminals to operate outside of the reach of the law it will get legislation added to it now its become a problem. a good example would be how the rules changed when pre paid cell phones revolutionised the drug and organised crime.

This current case has nothing to do with the problems of self incrimination and is nothing to do with why you have the 5th amendment this is a guy hiding evidence behind a loop hole in the law.

Its no victory for freedom and liberty its a win for the criminal side, the danger to liberty is what happens next, the bill that closes this loophole will be put forward to give the law enforcement agencies the power to acquire evidence . the risk being its too far reaching.

so really the people that love freedom of speech and liberty should be worried about this because it now means some aspect of those rights needs to go to allow the law to function.

I believe Athinira has already addressed your issues. But follow me on this thought experiment: I, in fact, keep a journal of sorts. I write in a weird series of symbols that equate to code. I don't have a key written down anywhere because there isn't one. The rules on what I use keep changing. Let's suppose the feds have a warrant for my house for some unrelated charge. They find this journal. Can they demand I translate it or give them a key (which, as I've said, doesn't exist, because the context and syntax rules keep changing)? They've already pointed out how a physical object and something stored in the mind are not quite the same.

Simple yes or no question: can the feds force me to translate what I wrote, for them to build a case against me? Y/N

The answer, according to case law, is no. They're allowed the data. I don't have to, however, help them make sense of it. And before you try bringing up the safe analogy, note that it's already been shown how that isn't the same.

onus probandi falls with the DA.

Simple answer is NO. as you say it is for the prosecution to prove (im English i assume DA is district attorney? which i am also assuming is the same sort of thing as the CPS crown prosecution service)

Im not sure the law is exaclty mirrored but im speaking about UK law here, if they say executed a warrant to search your premises and found unrelated things they would have the right to take them and fresh prosecutions would arise based on that evidence, if they find white powder they can test it for cocaine. find a gun they can run it against ballistic records, find evidence of tax fraud or whatever anything illegal or for illegal use they can take and use, they wouldnt have the right to make you say you were guilty of anything it is still for them to prove in each case.
we agree totally this is all fine correct and as it should be.

My point is there is a test drugs , firearms, financial reports, you can run checks on bank statements financial records etc but there is no system for encryped data. if you had these items in a safe you would have to open it , behind a locked door you would have to open it. it is wrong for them to demand you provide any incriminating evidence but they do have the right of access. and thats why this case stuck there is a clear conflict. but they do still have the right to know what that data says if they have the warrant. the means to identify the possible infraction of law rested solely within the accused's power. and that is the bit i suspect that will get altered.

The likely outcome of this is a change to the way encryption is allowed and companies that provide encryption will have to provide keys to de crypt it under warrant to.

That was my point, the case was right but the law is currently wrong there is no system to acquire the information without violating the 5th amendment. But the 5th like the right to silence and burden of proof are there to make it fair. Not to provide immunity. and thats what will change.

so as i say this is no victory for freedom but a warning that the laws about to get upgraded and those freedoms will be eroded.

You are aware that a law cannot simply override the constitution, correct? You need a constitutional amendment to do so. That's the way we do things around here. If SCOTUS says "The fifth amendment protects incripted data", you can't pass a law to get around it.

Also, we have a rather different set of laws here. So there's that. If the cops find a safe at my house that has a key, I'm required to produce it. Case law exists in this matter. If it's a code safe, I don't have to open it. Slightly different, but they make a world of difference in case law.

 

[Chanel Tompkins]

I like where it's going, but I don't want to hold my breath about it holding up in the Supreme Court, if a challenge gets taken that far. I mean, yeah there's a good chance for holding to the Constitution, but the Supreme Court's also full of people old enough to be scared of technology.

 

[evilneko]

I feel almost like.. breaking into song!

This was a triumph.
I'm making a note here:
HUGE SUCCESS.
It's hard to overstate my sa~tisfaction.

/Applauds the Court.

 

[Daemonate]

I like where it's going, but I don't want to hold my breath about it holding up in the Supreme Court, if a challenge gets taken that far. I mean, yeah there's a good chance for holding to the Constitution, but the Supreme Court's also full of people old enough to be scared of technology.

Sotomeyer you go Girl!

 

[Athinira]

Athinira, doesn't the finding in United States v. Fricosu contravert some of what you claim? Not that case specifically perhaps, but parts of the line of logic and precedent used to produce the finding?

For example: "...the defendant?s production was not necessary to authenticate the drive because he had already admitted possession of the computer..." http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

That's exactly right. The Fricosu Case and this case, which are both appeal court cases btw, are very very similar, yet the judgement was drastically different.

That's why i hope the Fricosu case will eventually find it's way to the Supreme Court, who i predict will rule the same as in this case: That unless the foregone conclusion applies, the 5th Amendment right protects Fricosus right to not incriminate herself by admitting control over the encrypted content.

It is possible that the court thought Fricosu's admittance to the possession of the computer might have been the deciding factor. It seems to me that the court ruled that admitting to possession of an encrypted computer is the equivalent of admitting control over the encrypted content. First of all, like mentioned, i would very much like to see that tried at the Supreme Court, but second (and also equally important), i doubt the ruling would have been the same if Fricosu had taken the 5th from the start, and not admitted to possessing anything at all.

Especially in this particular case, however, what would have been the court's response to a claim by Ms. Friscou that she could not remember, and/or had lost/destroyed the only written copy of, the password needed to decrypt?

Impossible to say without a ruling. I guess that would depend a lot on circumstances beyond what we know (for example how convincing Fricosu sounds to begin with. It's hard to judge without actually viewing the proceedings).

Perhaps I am reading it wrong, but then just admitting one possessed / owned a device at some point in time would be then halfway to determining foregone conclusion and the requirement of producing the contents? Surely this does not take into account accidental or malicious intrusion, misuse by another, content stored.

I have personal experience with this as I once knew of someone who received a disk from another person, supposedly blank, which turned out to have questionable content. They could not be sure where the content originated from, and the other party claimed no knowledge of the content (it was from a business machine several years old, which many people had access to), so they destroyed the disks.

If for example, they had instead failed to inspect the disks and yet blithely installed them in their computer, which they freely admitted ownership of, could they have been compelled to grant access to files that they did not know existed, that did not belong to them, and that they may have had no physical way to produce (if they required a password to view)?

...and your example is the EXACT reason i choose to support people like Fricosu, the EEF and the man in this ruling

My point is there is a test drugs , firearms, financial reports, you can run checks on bank statements financial records etc but there is no system for encryped data. if you had these items in a safe you would have to open it

No you wouldn't. You would have to hand over the keys (physical items), but if it was a combination safe, the court has ruled that police can't enforce you to reveal or use the combination, so they will have to break into the safe themselves.

That is, of course, unless it's a company being raided, because this part...

The likely outcome of this is a change to the way encryption is allowed and companies that provide encryption will have to provide keys to de crypt it under warrant to.

That was my point, the case was right but the law is currently wrong there is no system to acquire the information without violating the 5th amendment. But the 5th like the right to silence and burden of proof are there to make it fair. Not to provide immunity. and thats what will change.

...forces me to bring up a very important point: The 5th Amendment only protects individuals, not companies.

If a company has been raided and drives (with encrypted content) seized, then the court can compel people who they believe capable of opening the encrypted content (could for example be a secretary or the chief of security) to open it, since it's the company that's under scrutiny, not the persons. It's a vastly different situation from these cases.

Of course the ability to claim not having access still applies. Whether or not that's contempt for court would have to be decided on a case by case basis.

 

[Daemonate]

Thanks for your replies.

Getting a little bit off-topic, what if being compelled to open company computers for company crimes would lead to you incriminating yourself individually criminally?