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Privacy Data Storage Encryption Government Security The Courts News Your Rights Online

US District Ct. Says Defendant Must Provide Decrypted Data 767

Posted by timothy from the narrow-ruling dept.
An anonymous reader writes "If you're planning on traveling internationally with a laptop, consider the following: District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case. Laptop searches at the border have been discussed many times previously. This is the case where a man entered the country allegedly carrying pornographic material in an encrypted file on his laptop. He initially cooperated with border agents during the search of the laptop then later decided not to cooperate citing the Fifth Amendment. Last year a magistrate judge ruled that compelling the man to enter his password would violate his Fifth Amendment right against self-incrimination. Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents." sohp notes that "the order is not that he produce the key — just that he provide an unencrypted copy."
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US District Ct. Says Defendant Must Provide Decrypted Data More

US District Ct. Says Defendant Must Provide Decrypted Data

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  • 5th Amendment (Score:5, Insightful)

    by alain94040 ( 785132 ) * on Thursday February 26, 2009 @06:34PM (#27004915) Homepage

    FTA:

    Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive.

    I don't know anything about the 5th Amendment, but I was under the impression that it was way stronger than this quote suggests. Just because I admitted that it's my laptop, I now can't take the 5th? In movies at least, that's not how it works :-)

    Imagine if you treated the 1st Amendment the same way... we'd be in serious trouble. "By admitting that you have an opinion contrary to the government, you gave up your rights to free speech".

    • Re:5th Amendment (Score:5, Insightful)

      by Anonymous Coward on Thursday February 26, 2009 @06:35PM (#27004947)

      By living in this country, you hereby have been co-operating with the government, and have therefore waived all your rights.

      I only wish I was joking more than I am...

      • I wish I had last night's mod points tonight, this is the kind of thread...and posts like parent, in particular, that I'd mod through the roof.

        15 points right in here......

      • Everyone, please watch this (Score:5, Informative)

        by rolfwind ( 528248 ) on Friday February 27, 2009 @02:56AM (#27008953)

        http://www.youtube.com/watch?v=6wXkI4t7nuc [youtube.com]

        Also, the judge is full of shit. You have the right to shut up at any time.

        • Re:Everyone, please watch this (Score:4, Interesting)

          by TheLink ( 130905 ) on Friday February 27, 2009 @03:13AM (#27009035) Journal

          Something is badly broken when everyone is told not to talk to the police.

          I think the priority should be to fix what's broken, rather than tell people not to talk to the police.

          Sure it does reduce your risk a bit (and thus benefits you), but if everyone does that, the police become a lot less effective.

          It's like the mass vaccination programs, if nearly everyone takes the vaccine, and only a few refuse, the few benefit (since vaccines do have side effects, and there's always a small risk of bad reactions). But if everyone refuses, it becomes a huge problem.

          So if the problem is the police are crap. That should be fixed ASAP.

          * The basic mission for which the police exist is to prevent crime and disorder.
          * The ability of the police to perform their duties is dependent upon the public approval of police actions.
          * Police must secure the willing co-operation of the public in voluntary observation of the law to be able to secure and maintain the respect of the public.
          * The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
          * Police seek and preserve public favour not by catering to public opinion, but by constantly demonstrating absolute impartial service to the law.
          * Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.
          * Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence.
          * Police should always direct their action strictly towards their functions, and never appear to usurp the powers of the judiciary.
          * The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.

          See: http://en.wikipedia.org/wiki/Peelian_Principles [wikipedia.org]

    • Re:5th Amendment (Score:5, Interesting)

      by fastest fascist ( 1086001 ) on Thursday February 26, 2009 @06:38PM (#27004995)
      Also if the defendant is not required to provide the encryption key/password, but an unencrypted copy, what's to keep them from providing a "sanitized" copy - how do you check if it's the same bunch of files if you can't see the encrypted data?

      • Re:5th Amendment (Score:5, Funny)

        by jockeys ( 753885 ) on Thursday February 26, 2009 @06:43PM (#27005099) Journal
        exactly. or, as I thought to myself when I initially read this:

        "Why not just lie and provide a bunch of mundane TPS reports? They shouldn't be able to tell what the encrypted files are, it's mathematically infeasible to solidly prove that one way or another."

      • Whats on the laptop, son? (Score:5, Funny)

        by TiggertheMad ( 556308 ) on Thursday February 26, 2009 @07:46PM (#27005931) Journal
        When asked at the border what that huge suspicious file is on your laptop, do you answer..."

        "I don't know, its a encryption contest. First person to decrypt the file gets $10,000."

        "Its a raw rendered animation. I am preparing my portfolio to send to Pixar."

        "Its a wadfile I'm assembling for an open source game file."

        "It's a dump of an old VAX proprietary database that my boss wants me to port to SQL."

        "Its a gig of encrypted kiddie pr0n."

        Think carefully now...

        • Re:Whats on the laptop, son? (Score:5, Funny)

          by Fluffeh ( 1273756 ) on Thursday February 26, 2009 @08:00PM (#27006105)

          When asked at the border what that huge suspicious file is on your laptop, do you answer..."

          Well, lets have a look at that now, and see which is the most fitting answer:

          "I don't know, its a encryption contest. First person to decrypt the file gets $10,000."

          Guard: A $10,000 reward eh? I better have a look at this. I need a new holiday...
          Outcome: Laptop lost.

          "Its a raw rendered animation. I am preparing my portfolio to send to Pixar."

          Guard: A new animation going to Pixar eh? I better have a look at this, this could be freakin' cool!
          Outcome: Laptop lost.

          "Its a wadfile I'm assembling for an open source game file."

          Guard: A WAD file eh? What sort of open source sick stuff are you doing you whacko? Come into this little cosy room for a moment.
          Outcome: Laptop Lost. Arrested.

          "It's a dump of an old VAX proprietary database that my boss wants me to port to SQL."

          Guard: Oh, really, a secret mumbo jumbo database huh? Are you sure you aren't a TERRORIST?!? Is that a picture of the George Washington statue I see in your pocket? Better come with me!
          Outcome: Arrested for being terrorist. Thrown into waiting cell for six years.

          "Its a gig of encrypted kiddie pr0n."

          Guard: Oh come on, be serious, if you aren't going to do this baggage check stuff properly don't do it at all. Now shove off!
          Outcome: Guard doesn't believe such amazingly incriminating answer. Thinks you are obnoxious. Tells you to keep going.

        • Re:Whats on the laptop, son? (Score:5, Interesting)

          by shutdown -p now ( 807394 ) on Thursday February 26, 2009 @09:30PM (#27007141) Journal

          You joke, but I've filled a U.S. visitor visa application form recently, and, among other gems, it included a row of checkboxes such as:

          • Do you belong to a terrorist organization, or do you intend to commit any terrorist acts on the U.S. territory? [Y/N]
          • Have you ever taken part or otherwise assisted in genocide, religious persecution, war crimes, or crimes against humanity? [Y/N]
          • Do you intend to smuggle drugs or other illegal substances into the U.S.? [Y/N]

          Etc. Somehow, I don't think they will be at all amused if you reply "yes" to any of those, but I always wondered about the point of those things.

          • Re:Whats on the laptop, son? (Score:5, Insightful)

            by alain94040 ( 785132 ) * on Thursday February 26, 2009 @09:57PM (#27007339) Homepage

            I always wondered about the point of those things

            There's actually a very good reason for those questions. Of course it's not to find terrorists by hoping that they answer yes to the question when crossing the border.

            The trick is that since the terrorist will say no, they can be deported for lying on an immigration form, which has much less of a legal burden than proving that they actually are terrorists. Just like Al Capone, if you can't catch them for their crime, get them on a technicality.

            It's that simple.

    • Re:5th Amendment (Score:5, Insightful)

      by neoform ( 551705 ) <djneoform@gmail.com> on Thursday February 26, 2009 @06:49PM (#27005175) Homepage

      If the files were encrypted, there's no way the police could have identified any of the files. It was his fault for helping the police in the first place.

      You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

      • Re:5th Amendment (Score:5, Interesting)

        by couchslug ( 175151 ) on Thursday February 26, 2009 @07:22PM (#27005623)

        What is needed is a destructive decryption program that produces files with innocent .zip or .rar file extensions that "decompress" into benign images or other files while destroying the original data. Unless the file is renamed and then opened with the appropriate program, no data is available.

        All defaults would appear "wholesome",

        The Thought Police request access to your flash drive. You hand it to them without comment, they open the files which display innocent images you personally selected beforehand. There is no steganography, the data is lost.

      • Re: (Score:3, Insightful)

        by RichardJenkins ( 1362463 )

        It's a pretty horrible notion; but the courts seem to want to make this abhorrent attitude the only reasonable way to deal with police.

      • Re:5th Amendment (Score:5, Interesting)

        by RazzleDazzle ( 442937 ) on Thursday February 26, 2009 @07:26PM (#27005675) Journal

        You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

        obligatory quote

        There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.

    • The Ammendment (Score:5, Informative)

      by mangu ( 126918 ) on Thursday February 26, 2009 @06:54PM (#27005241)

      I don't know anything about the 5th Amendment

      Here's the full text:

      Amendment V
      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.

      I wonder, which part of "nor shall be compelled" did the honorable judge not understand?

      • Re:The Ammendment (Score:5, Informative)

        by muridae ( 966931 ) on Thursday February 26, 2009 @07:24PM (#27005651)
        The guy gave the police his laptop, and cooperated with them. If I open a diary, during a border crossing or car search or what ever, and the cop sees evidence that I killed someone, they can get a subpoena for the book and I can't invoke the 5th. I already showed it to them. If this guy had kept his mouth shut to start with, not shown the police any part of the encrypted drive, he would be fine.

        The 5th is not an on-and-off right. You can't get on the stand at your own trial to testify in your own defense, and then start invoking the 5th when the prosecutor asks questions you don't like. The same here, he gave them the computer, they saw the data. He can't say, after that, "Sorry, I'll take the 5th, you can't see the computer again."

        • Re: (Score:3, Informative)

          by mangu ( 126918 )

          You can't get on the stand at your own trial to testify in your own defense, and then start invoking the 5th when the prosecutor asks questions you don't like.

          IANAL, but AFAIK you can do so. You can testify in your own defense and refuse to answer any particular question.

          And as a matter of fact, so can any witness. Suppose you are called to testify on a crime you saw being committed. You can refuse to answer any question that would show you were an accessory to that crime.

          • Re: (Score:3, Insightful)

            by Achromatic1978 ( 916097 )
            Exactly. Absolutely you can. "Could you state your full name?" "Blah blah blah" "And what do you do?" "Blah blah blah". "On the night of 25 February 2009, where were you between 6-8pm?" "I invoke my fifth amendment rights."

          • Re:The Ammendment (Score:5, Informative)

            by muridae ( 966931 ) on Thursday February 26, 2009 @08:39PM (#27006549)

            I'm bored, so I looked it up. Raffel v. United States, 271 U.S. 494 (1926). Further upheld in Johnson v. United States and later Stefena BROWN, v. UNITED STATES. The witnesses can invoke the 5th on any question they feel may incriminate them. The defendant can not. The defense's choice is 'Take the stand or not." Once they take the stand, the questions just have to be valid and not cause a violation " . . . of policy in the law of evidence which requires their exclusion."

            Either way, this guy waived his 5th, with regard to this evidence, when he showed the police the incriminating evidence.

            IANAL, this is not legal advice. Raffel v US could have been overturned for all I know. I can't find anything suggesting that just yet.

            • Re:The Ammendment (Score:5, Interesting)

              by AK Marc ( 707885 ) on Thursday February 26, 2009 @09:02PM (#27006853)
              But when they call the defendant to the stand, he *explicitly* gives up his 5th Amendment rights. And he doesn't give them up. He agrees to not follow them before taking the stand. They aren't throwing him in jail for failure to incriminate himself, but he swore to tell the whole truth, and is refusing to uphold that oath he gave, knowing it was overriding the 5th Amendment. The witnesses don't count because they are often not there voluntarily. They are compelled to testify, so they may decline any individual question. The defendant is not compelled to testify, but if he does must answer all questions. The reasoning behind that is sound, for someone to take the stand and give only small bits of the truth that help their case and excluding parts that wouldn't is a tactic that the courts don't allow.

              Either way, this guy waived his 5th, with regard to this evidence, when he showed the police the incriminating evidence.

              Did he show them incriminating evidence, or just make reference to it? And did they get the waiver in writing? The waiver in court is considered to be in writing because it is officially transcribed and witnessed by at least 3 parties. If they can't show he stated "I understand that by showing you this, I give up all rights" or whatever, then I can't see how he "gave them up." It sounds more like they were taken from him.

    • Re:5th Amendment (Score:5, Informative)

      by conlaw ( 983784 ) on Thursday February 26, 2009 @06:54PM (#27005245)
      It wasn't just that he admitted that it was his laptop; he actually opened the Z drive for the border agent who then saw evidence of child pornography. This is like you standing at your door and saying, "Of course you can come in and search my house, officer." Once you've done that, you can't really take the 5th with regard to the illegal items they find in that search.

      And before someone raises the issue, the decision should come down differently if the illegal goods were found in your roommates room and you had no way of knowing that he possessed these items.

    • Re:5th Amendment (Score:5, Insightful)

      by physicsphairy ( 720718 ) on Thursday February 26, 2009 @06:55PM (#27005249)

      IANAL, but I imagine there is a distinction between 'self-incrimination' and 'providing evidence.'

      Since he has already admitted that the laptop is his and he is responsible for storing pictures in the encrypted section, the barrier between convicting him and not convicting him is merely whether the photos are retrieved. This could just as well be done by technological means (hypothetically!) as having him give up the password.

      The reason for his having a right to retain the password is because this essentially admits his possession and access to the encrypted data. Forcing him to provide it is forcing him to prove his guilt, which is obviously self-incriminating. But since he has already given that testimony, now the password is just a barrier to material evidence the court would like to collect.

    • Re:5th Amendment (Score:5, Interesting)

      by nasor ( 690345 ) on Thursday February 26, 2009 @06:57PM (#27005265)
      Courts have ruled before that you can't take the 5th to refuse to unlock a safe that you own. The reasoning is that the information you're providing - the combination to a safe, or in this case a decryption password - could never be incriminating in and of itself. It's the same reasoning that they used when they decided that the 5th doesn't give you the right to refuse to disclose your name. Now, if he had wanted to claim that the encrypted files weren't his and he didn't know how they got on his laptop, then providing the password COULD potentially be incriminating, because it would be evidence that the files were indeed his. But now that he has admitted to owning the files, that scenario is no longer relevant.

    • Re: (Score:3, Informative)

      by NotBornYesterday ( 1093817 ) *
      FTFA:

      Curtis asked Boucher "to use the computer" to show him the files he downloads. Curtis reviewed the video files, observing one that appeared to be a preteen undressing and performing a sexual act, among other graphic images, the affidavit says.

      "Curtis" is the border agent.

      IANAL, but I'll comment anyway. He allowed a border agent enough access to his computer for the border agent to actually see CP on it. At this point, probably cause exists to search the laptop, so it is less like trying to extract a confession, which is what the 5th was originally designed to protect against, and more like executing a search warrant.

      • Re: (Score:3, Interesting)

        by bluefoxlucid ( 723572 )

        First off, why the hell would you show a border agent child porn?

        Second, you're at the border. You're not allowed to bring fruit, nuclear material, or child porn with you into the country. Seeing as you have not yet entered the country with any of these things, and you did not acquire them inside the country, your current possession of such things has not broken any laws in the country! At this point, you should now DELETE said child porn, or turn over all copies to border patrol, whatever. You are now

      • Re: (Score:3, Insightful)

        by dgatwood ( 11270 )

        Here's what I don't get: why didn't the border patrol agent immediately instruct the guy to step away from the computer and walk across the room, then photograph the evidence? Also, how could somebody be so dumb as to show a border patrol agent child pornography in the first place? I mean, maybe I could see it if the person opens the computer and that's what's on the screen, maybe, but explicitly going through and showing off your stash of illegal videos to a border patrol agent has to be the dumbest thin

    • Re: (Score:3, Insightful)

      by IP_Troll ( 1097511 )
      The 1st amendment states that: "Congress shall make no law ... abridging the freedom of speech...."

      The 5th amendment states: "No person ... shall be compelled in any criminal case to be a witness against himself...."

      You cannot compare 1st and the 5th amendments, in the manner you did, because they do not have analogous effects. One prevents congress from making laws the other vests rights in an individual. You cannot waive your 1st amendment right because it is not granted by the 1st amendment, it is

    • Re:5th Amendment (Score:5, Informative)

      by canajin56 ( 660655 ) on Thursday February 26, 2009 @07:21PM (#27005613)
      You can take the 5th all you want. You can't take it on what you've already admitted to. He said its his laptop, and he said Z: is an encrypted partition where he stores the images. The image files names from recent documents looked like child porn. That got them a warrant. He refused to cooperate with the warrant. The judge said you can't take the 5th on whether those pictures are there, since you admitted it. Since they are there, you must cooperate with the warrant and let us see them. You don't have to testify as to the password, but you DO have to use it to show us the files.

    • Re: (Score:3, Interesting)

      by Monkeyman334 ( 205694 )

      It's not that you have a misunderstanding of the 5th amendment, it's just you were misled by the article summary and don't have the legal knowledge to know that it's wrong. In fact, the 5th amendment is not an issue in this case. It's more of a 4th amendment issue. The argument that worked in the last court is that the 5th amendment applies because the password is testimonial. The reason the defense worked is because they're right that it is testimonial in nature and is protected under the 5th amendment. Wh

    • Re:5th Amendment (Score:4, Interesting)

      by stmfreak ( 230369 ) <[moc.liamg] [ta] [kaerfmts]> on Thursday February 26, 2009 @08:55PM (#27006761) Journal

      A more apt comparison to the first amendment would be that by cooperating to shut-up at first, you've waived your right to speak up in the future.

      This 5th amendment ruling seems wrong. Primarily because the so-called human rights defined in the BOR were not granted by the paper or the government; they are instead inalienable. They cannot be revoked because they are not granted. The BOR was the founder's attempt to remind future government that:

      1. it is futile to attempt to restrict the speech of the people... they will find a way.
      2. it is futile to attempt to infringe the RKBA, because those who want weapons will have them anyway.
      3. it is futile to demand to quarter troops in the houses of the people... that leads to revolution
      4. you better not breach a man's castle for unreasonable search and seizure... revolutions are begun this way
      5. respect the property of the people or risk revolution. And respect their privacy because compelling someone to testify against themself dresses lies as truth.
      6. trial by peers or revolution!
      7. trial by jury over money or revolution!
      8. be reasonable with bail and punishments or revolution!
      9. without limitation
      10. states rule, feds drool

      The feds have obviously chosen to ignore all of these.

  • How is this over turned. (Score:5, Insightful)

    by jgtg32a ( 1173373 ) on Thursday February 26, 2009 @06:35PM (#27004945)
    I didn't RTFA, but the summery says "the man had waived his right against self-incrimination when he initially cooperated with border agents"

    You still don't have to turn over your encryption keys he waved his right to the 5th, it doesn't apply to the rest of us, we can still say no.
    • If this is the keystone to his conviction, he could choose to tell the court to go fuck itself and just take the contempt of court charge that would inevitably result, which should be substantially less than whatever you get for smuggling encrypted child pornography across the border.

  • Initial cooperation (Score:5, Insightful)

    by Imagix ( 695350 ) on Thursday February 26, 2009 @06:35PM (#27004951)
    So if you initially cooperate, you can no longer claim 5th amendment protections? Hmm... you "initially cooperated" with the police when you said what your name was. You can no longer claim the 5th amendment. Slippery slope anyone? (Good thing I'm not American)

    • Re:Initial cooperation (Score:5, Informative)

      by cfulmer ( 3166 ) on Thursday February 26, 2009 @06:42PM (#27005085) Journal

      No. If you show the border agents the encrypted kiddie porn on the hard drive, you cannot later claim that being forced to give them a copy of that same kiddie porn would be a violation of your 5th amendment right.

      • Not necessarily true. (Score:4, Interesting)

        by rantingkitten ( 938138 ) <kitten@NOSpAM.mirrorshades.org> on Thursday February 26, 2009 @08:58PM (#27006785) Homepage
        If the only thing against him at this point is some border guard saying he saw child porn on the guy's laptop, the guy has not given up his fifth amendment rights. For one thing, one person's word against another's is rarely given much weight in court if that's all there is.

        In short, the guard claiming he saw child porn on the guy's hard drive is much, much different than the court ordering the guy to provide evidence against himself.

        This is different from, say, a police interrogation, where what you're saying and doing is recorded and usually witnessed by several people. In such a scenario, assuming you'd been Mirandized, then if you confess to something, it's game over, and you can't go to court and claim fifth amendment protection against information you voluntarily gave away in the presence of corroborating witnesses and recording equipment.

        But in this situation, it seems like all the court has is some guard's say-so that there was child porn, at which point the laptop was seized, but now nobody can confirm whether or not the guard saw what he claims to have seen. As far as I can see, there's no legal reason to insist that the guy has to give up information based on that.

        Let's put it another way. Suppose you get pulled over on a routine traffic stop. For no reason, the cop arrests you, and claims you told him you killed a guy. Now, do you think your fifth amendment rights have been forfeit because a single individual says you already admitted to the crime? Or do you think maybe there should be a little more to it than that?

    • Re:Initial cooperation (Score:4, Interesting)

      by at_slashdot ( 674436 ) on Thursday February 26, 2009 @07:09PM (#27005443)

      (Good thing I'm not American)

      so... good thing that you don't have that right in the first place?

  • So you're not allowed to change your mind? (Score:3, Insightful)

    by ArcadeNut ( 85398 ) on Thursday February 26, 2009 @06:35PM (#27004953) Homepage

    So once you waive your rights, you are not allowed to re-invoke them?

    This case will probably hit the SCOTUS.

    It will be a case to watch, that's for sure!

  • Misleading topic (Score:5, Insightful)

    by nobodylocalhost ( 1343981 ) on Thursday February 26, 2009 @06:39PM (#27005003)

    "US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."

    e.g. it isn't so much of an issue with what the court order asked of the defendant, but rather, an issue of if he waived his rights.

    basically, don't cooperate with the police/feds/border agents to start off with. plead the fifth no matter what.

    • As a reminder, never ever EVER volunteer information to the police. Get a lawyer, ALWAYS.

      This was linked on Slashdot once before:
      "Don't Talk to the Police" by Professor James Duane [google.com]

      The policeman perceives his job as to "make arrests", and the DA's job is to "make convictions". They (mostly) care only that tey have an ironclad case, and not whether or not you are innocent.

  • then what proof? (Score:5, Interesting)

    by nebaz ( 453974 ) on Thursday February 26, 2009 @06:40PM (#27005027)

    So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?

    • Re: (Score:3, Informative)

      by rts008 ( 812749 )

      Well, then the agent he had already shown the alleged child porn to could just testify that :"No your Honor, those are not the same files he showed me before."

      Because he had already shown the files, the judge is basically saying that he had to turn over the data unencrypted, can't take the 5th.

      In other words, no 'do overs/mulligans'-he should have saved his game before running headlong to the next level.

  • Absurd (Score:3, Insightful)

    by ThePlague ( 30616 ) * on Thursday February 26, 2009 @06:40PM (#27005033)

    He's still being compelled to provide evidence against himself, so I don't see how the fact that he initially cooperated waives his fifth amendment rights.

  • Wow... (Score:4, Insightful)

    by Anonymous Coward on Thursday February 26, 2009 @06:42PM (#27005067)

    Guy walks through a security checkpoint in an airport.

    Hello sir. May see ID?

    Here you go.

    Thanks. I see you have a backpack, may I check it?

    Sure, no problem.

    Oh, I see you have a laptop. I want to see what you have on it.

    No, sorry, the material on it is personal. If you try and push me I can easily claim the 5th Amendment.

    Ah, but you cannot because you initially cooperated with me when I asked for ID and wanted to searched your bag.

    ---

    I know this isn't exactly what's going on here, but how long until it is?

    • Re:Wow... (Score:4, Informative)

      by LeafOnTheWind ( 1066228 ) on Thursday February 26, 2009 @11:50PM (#27008047)

      No what the case was:

      Oh, I see you have a laptop. I want to see what you have on it.

      Yeah, sure. Here I'll open up the Z: drive for you.

      Hey, there's child porn there - you're under arrest.

      *Later*

      Open up your Z: drive again so that we can show the court your child porn.

      No, I plead the fifth.

      You already waved your rights - we're not asking you to do anything new or different, just to repeat what you did before. The fifth amendment doesn't apply.

  • One word: (Score:4, Interesting)

    by Locke2005 ( 849178 ) on Thursday February 26, 2009 @06:44PM (#27005105)
    Steganography [wikipedia.org]
    Is "I forgot" or "I never knew the password in the first place" considered a valid defense? One of the problems with compelling people to produce passwords is that it assumes they know the password. Spending months in jail for failure to produce information you don't know would really suck.

    • Re:One word: (Score:5, Insightful)

      by eosp ( 885380 ) on Thursday February 26, 2009 @07:04PM (#27005363) Homepage
      That question was posed at a conference at my university with some cryptographer. He grabs a piece of paper from his notes, tears a strip about three inches long up, and rolls that up. He takes a dry-erase marker from the board and colors the end red, tossing it at one student.

      "What's this?" the student asked.

      "That's your child's pinky. Now what's your password?"

      • Re:One word: (Score:4, Insightful)

        by Toonol ( 1057698 ) on Thursday February 26, 2009 @07:20PM (#27005597)
        Yeah, because feds will kidnap and mutilate your children to get you to confess your password. Geez.

      • Re:One word: (Score:5, Insightful)

        by PPH ( 736903 ) on Thursday February 26, 2009 @08:13PM (#27006257)

        "That's your child's pinky. Now what's your password?"

        Not in the USA.

        The best response would have been to throw it back. When the speaker asks what it is now, you tell him that its the end of his dick that the court cut off in response to your complaint.

        The state of our legal system is that such an act would have tainted the evidence and damaged law enforcement's cas to the point that, child porn or not, that evidence would be worthless.

  • Makes no sense (Score:3, Insightful)

    by russotto ( 537200 ) on Thursday February 26, 2009 @06:52PM (#27005205) Journal
    Suppose the cops want to search my house without a warrant. Stupidly, I let them, and they don't find anything. Now a week later they want to search again, and I deny them entry. Following this decision, since I waived my rights when I co-operated once, I have to co-operate again. WTF?

  • Would the smartass approach work? (Score:4, Interesting)

    by Locke2005 ( 849178 ) on Thursday February 26, 2009 @06:52PM (#27005213)
    I always set my password to "confidential". Then when they ask me what my password is, I can truthfully reply, "It's 'confidential'!" And when they try to put me in jail, I can truthfully say, "I told you what my password was!" (True story: many years ago, the admins at Amdahl UTS sent out an email to all developers stating "We've changed the root password for the system and we can't tell you what the new password is because it's a secret". I of course immediately tried logging in as root using variants of "asecret" for a password, and sure enough -- it worked!)

  • Waived his right against self-incrimination... (Score:5, Funny)

    by SlashThat ( 859697 ) on Thursday February 26, 2009 @06:53PM (#27005223)
    ... when he initially cooperated? That's like saying that you wave your right for freedom of speech if you shut up for a moment.

    • Re: (Score:3, Informative)

      by andy_t_roo ( 912592 )

      actually "initally cooperated" refers to him showing the evidence that he had CP in the first place. Effectively this means that you can't show law enforcement people evidence, then refuse to turn it over.

  • RTFO (Score:5, Informative)

    by Peyna ( 14792 ) on Thursday February 26, 2009 @07:00PM (#27005317) Homepage

    Seriously people, read the court's opinion. Nowhere does the court say it finds he has waived his Fifth Amendment rights because of his initial cooperation. Instead, the rationale is that because the government is already aware of what is on the hard drive (the border agent saw suspicious file names and then apparently saw actual images of child pornography while reviewing the computer when it was turned on), forcing him to hand over the documents is not a self-incriminating act.

    Further, because they are documents already existed, they are not "testimonial" in themselves. The Fifth Amendment concern is with forcing the person to hand over the documents, because doing so may in effect be self-incrimination because the person is being forced to admit either that they have the documents or that the documents are real and exist. Neither of these is an issue, because the government already knows the documents exist and are real, and the defendant admitted to having them on his computer.

    So, to sum it all up, the conclusion is not that the defendant has waived his Fifth Amendment rights, but rather, that forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.

    • Re:RTFO (Score:4, Interesting)

      by CodeBuster ( 516420 ) on Thursday February 26, 2009 @08:25PM (#27006393)

      forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.

      The ruling is still troubling for the following reason: Suppose that the defendant had not cooperated with the agents in any way, only answering questions that are minimally necessary and required by law (i.e. his name). If the government agents then say that he has "document x" on "his laptop", but he says nothing and does not assist them in any way then could they later say that forcing him to produce "document x" which they claim is on the encrypted laptop (whether it is or not) abrogates the fifth amendment right to refuse to give up the key? If the answer to that is yes, then the 5th amendment is meaningless in these situations since the government agents could make whatever claims they like about your laptop and force the burden upon you to disprove them by giving up the keys and submitting to a search or else face the consequences.

  • Here's how it works (Score:4, Informative)

    by g_adams27 ( 581237 ) on Thursday February 26, 2009 @07:02PM (#27005329)

    IANAL, but if I understand what I'm reading, here's how it works. (Lawyers, please correct me where I'm wrong):

    The 5th amendment protects you from making testimonial statements that would incriminate you. What is testimony, then? It's basically saying something that the prosecutors don't know, or something that isn't self-evidently true. (The police and prosecutors may THINK you robbed the bank, but they can't compel you to admit on the witness stand that you did so, because that would be self-incriminating testimony from you that would clinch the case.)

    In this case, however, the prosecution is well aware that the defendant has the information they want: namely, the password to the encrypted drive. They know this because he typed it in previously, in front of ICE agents. Therefore, by providing them the unencrypted contents of the drive, he is not providing new "testimony" - that is, when the defendant reveals that he does indeed know the password, it's nothing new. The prosecution already knows he owns the computer and that he knows how to access the hidden drive. Thus, the 5th amendment can't be used by the defendant to save himself from having to give the contents of the drive to the authorities.

    If I'm not mistaken, the authorities can compel a defendant to open a locked safe when they know that person knows where the key is (or what the combination is). I believe the same thing is happening here.

    Now, what if hypothetically he had a TrueCrypt hidden container on the drive? And what if the authorities were pretty sure that such a container existed, but couldn't be sure? Could they compel him to testify whether or not there IS a hidden container in the drive? I don't believe so - that would probably tilt the balance into "testimony", which would be protected by the 5th amendment. Ditto in the case of a file called "MYSTUFF.DAT" that the authorities think is probably a TrueCrypt encrypted volume, but can't be sure about. They can't force the defendant to confirm that suspicion.

    In this case, the defendant was sunk because of his prior, freely-given revelation that 1) there was an encrypted drive on his PC and 2) he knew how to access it. By giving that information up, he gave up the farm. It's too late to plead the 5th.

    • Re: (Score:3, Insightful)

      by g_adams27 ( 581237 )

      Following up on my own posting (and again, IANAL), here's the type of thing that the 5th amendment is designed to protect you against:

      The act of producing documents in response to a subpoena may communicate incriminating facts "in two situations: (1) 'if the existence and location of the subpoenaed papers are unknown to the government'; or (2) where production would 'implicitly authenticate' the documents." Id. (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983)).

      In this case, #1 doesn't help the

  • We need a destruction password in crypt! (Score:4, Interesting)

    by mlwmohawk ( 801821 ) on Thursday February 26, 2009 @07:07PM (#27005411)

    There should be a destruct password, if given at the password prompt, NUKES the contents of the drive!!!!

    Police: What's your password?
    You: Umm, let me think, oh! yes, "fr0b0zz"
    [police enter password]

    You: NO! Wait!!! NO!! That's the destruct password don't enter it!@!!

    Too late.

    Too bad, so sad.

    • Re:We need a destruction password in crypt! (Score:5, Insightful)

      by Anonymous Coward on Thursday February 26, 2009 @07:38PM (#27005821)

      IAAL and this does not sound like a good idea.

      In a forensic situation the first thing which would be done is an image of the system.

      Sure imaging is not feasible for border patrol style searches, but if it is a CP or terrorism case, odds are the police would have taken a backup of your machine to start off with.

      Giving them a self-destructive code would likely achieve nothing in the circumstance other then land you in further trouble (for obstructing a police investigation, lying, misleading the Court etc...) - even if the original charges and allegations are later proven to be false.

  • Whoops (Score:5, Insightful)

    by Hordeking ( 1237940 ) on Thursday February 26, 2009 @07:08PM (#27005437)

    sohp notes that "the order is not that he produce the key â" just that he provide an unencrypted copy."

    Of course, that's putting the cart before the horse.

    This probably won't fly in the SCOTUS. Even if it did, it would be quite impractical to enforce.

    Take for example, a suspected drug dealer. He cooperates a bit with the police who want to search his house. They find no illegal substances. But they saw an empty baggie sitting in a drawer. They tell him to hand over the stash, because they know he has one. Without the stash, they have no case. He refuses. Eventually it gets to the point of the court telling him to "hand over the stash". Therein lies the problem. Without the stash, there can't be any charges. So he conveniently says again "I have nothing to show you." What will they do? Hurl insults at him? Even if there was some way they could get him in jail, the accused would be better off taking 6 months for contempt of court or obstruction of justice (really tenuous) than 99 years for having the stash.

    This case is similar. The cops saw the images, then turned off the computer, which required a passcode for them to regain access. Now he's been ordered to produce an unencrypted copy of the data for them to use against him (not his password). I fail to see how those two are separate. Unless he has an unencrypted copy of the hard drive somewhere, this is going nowhere fast. Why? "Gee, your honor. With all of the stress of being in court and all, I seem to have forgotten the password to that hard drive. In fact, I don't remember what's on it, either."

    They need the porn for to convince the jury beyond the shadow of a doubt. The cops might be able to testify they saw something, but for all a jury knows, they could be lying, or they may not be remembering things clearly. What will likely happen is that the SCOTUS will say "You can't retract self-incriminating evidence you provided on your own, but you can refrain from providing any more at any time. If the police are careless with evidence, you don't have to give them more of it."

  • "You have the right to remain silent" (Score:3, Insightful)

    by flyingfsck ( 986395 ) on Thursday February 26, 2009 @07:13PM (#27005503)
    is lawyer speak for: "Shut the fuck up!"

  • This poses an interesting problem. (Score:3, Funny)

    by Ifthir ( 1446587 ) on Thursday February 26, 2009 @07:14PM (#27005513)
    How do we blame George W. Bush for this when Barack Obama is the president now?

  • He let the cat out of the bag. (Score:5, Interesting)

    by MarkvW ( 1037596 ) on Thursday February 26, 2009 @07:26PM (#27005665)

    I read the case. At the border, on request of the Immigration and Customs Enforcement people, the guy decrypted his (he admitted possession) laptop's Z drive and let the border agent have a look. The border agent saw probable cause to believe that the guy had illegal images stored on his computer.

    Now the guy is claiming that he can't be made to provide (once again) an unencrypted copy of the Z drive because the act of producing the unencrypted Z drive would tend to incriminate him.

    The "act of production" is the key thing. The Fifth Amendment affords zero privacy protection for hard drives (look to the Fourth Amendment for that). If the act of production would tend to incriminate you, then the Fifth Amendment may be asserted.

    The government won with the "cat is already out of the bag" attack. A higher court had already accepted that defense in a similar (non-computer) case. The District Court followed the reasoning in that case.

    This is a grand jury proceeding--not a criminal case. The government has submitted that it will not use the defendant's act of production against him when they prosecute him.

    I expect that this case will be finally resolved in the Court of Appeals.

    He hung himself when he decrypted the disk and showed the computer to the border agent.

     

    • Re: (Score:3, Interesting)

      by evil_aar0n ( 1001515 )

      Am I splitting hairs if I say that it seems to me that all the gov't has is an ICE agent's word that he saw incriminating files? They can't produce those files, and they didn't copy any of said files when they had the chance. I don't see how the court can take the agent's claim as prima facie evidence. What's to stop any agent, going forward, from saying he saw _whatever_ on any person's laptop, and then that person has to produce potentially self-incriminating evidence - even if it's made up - or be hel

  • Never talk to a LEO ...... (Score:3, Informative)

    by HW_Hack ( 1031622 ) on Friday February 27, 2009 @02:29AM (#27008831)

    First off let me say I have the utmost respect for Law Enforcement Officers (LEOs) - but in just talking to a LEO about "an event" circumstantial or otherwise basically erodes any rights you have (or thought you had).

    As Noted: Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents.

    There are a couple of great vids on this topic on youtube. Yes if had or discovered info on a nasty crime I would go to the police. But if you marginally involved or entangled in a dispute or some legal F-up --- talking to the police will not help you. Just read the Miranda and that says it all.

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