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US Appeals Court Upholds Suspect's Right To Refuse Decryption

Soulskill posted about 2 years ago | from the still-vulnerable-to-$5-wrench-decryption dept.

Crime 358

An anonymous reader writes "The U.S. 11th Circuit Court of Appeals has found that forcing a suspect to decrypt his hard drive when the government did not already know what it contained would violate his 5th Amendment rights. According to Orin Kerr of the Volohk Conspiracy, 'the court's analysis (PDF) isn't inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.'"

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Only when they don't already know? (3, Interesting)

Anonymous Coward | about 2 years ago | (#39146555)

Why only if the government doesn't already know what it contains? Does that mean that they can force you when they already know what it contains?

That doesn't make sense to me.

Re:Only when they don't already know? (5, Informative)

Anonymous Coward | about 2 years ago | (#39146613)

Yes. If the government knows your have child porn on your computer, then they can get a warrant to force decryption.

It's EXACTLY the same thing if they know you have a dead body in your garage they can get a warrant to force you to unlock the garage.

Re:Only when they don't already know? (5, Insightful)

AGMW (594303) | about 2 years ago | (#39146705)

Yes. If the government knows your have child porn on your computer, then they can get a warrant to force decryption.

If they know, that implies they can prove it, and if they can prove it they don't need to decrypt it!

Re:Only when they don't already know? (1)

Anonymous Coward | about 2 years ago | (#39146873)

What if they want to decrypt it to collect information about other people involved in this case?
Sounds acceptable to me.

Re:Only when they don't already know? (3, Insightful)

Anonymous Coward | about 2 years ago | (#39146987)

To use the GP's analogy, if your garage smells like rotting corpse, a judge will issue a warrant forcing you to unlock your garage door. That does not imply the police (or judge) knows you've been summoning Cthulhu.

Similarly, if your name/handle/URLID comes up in a money laundering probe*, that might be probable cause to force decryption even if it hasn't been proven that you've been using that particular drive. In any sane jurisdiction, any evidence uncovered during such a probe can not be used to file unrelated charges.

* or any other terrorist-like act that may or may not involve minors

Re:Only when they don't already know? (5, Insightful)

obijuanvaldez (924118) | about 2 years ago | (#39147079)

An excellent point, but not relevant here. However, in the United States, searches can be with a warrant issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Allegations can be supported by Oath, e.g. several friends and family members say they saw child porn on your laptop. Allegations can be supported by affirmation, e.g. they set up a sting operation whereby they do, in fact, know that at one time a computer in your house had downloaded child porn. But being very certain that it was downloaded onto a machine in the house just isn't the same as knowing on what machine and by whom. It also isn't the same thing as knowing it is still there. Finally, the burden of proof you mention isn't required until any subsequent trial.

Re:Only when they don't already know? (2, Insightful)

DarkOx (621550) | about 2 years ago | (#39147129)

That depends on how specific you need to be.

We "know" you have money hidden in that off shore account. We know you have your pgp private key on your hard disk. We need you decrypt the hard disk so we can decrypt the message from the bank we intercepted using the pgp key.

They know the key is there, they don't know what the key is; so yes they need you to decrypt it. I think this is actually a pretty reasonable ruling. It treats an encrypted hard disk just like we treat a safe in the physical world.

The government can compel you to open it If they can name something specif they are looking for inside and show that its reasonably likely to be there. They can't do it just because. If they don't have any evidence to show your computer was used in the crime you are being charged with and there is likely very specific evidence they expect find on it they can't make you decrypt it just to go fishing.

Re:Only when they don't already know? (4, Insightful)

Hatta (162192) | about 2 years ago | (#39147373)

Except that an encrypted hard disk is not just like a safe in the physical world.

Re:Only when they don't already know? (2)

realityimpaired (1668397) | about 2 years ago | (#39147169)

They may be able to prove you viewed child porn, by having used a honey pot, and tracking your IP address/etc.. That is enough to get a warrant to search your computer for evidence of wrongdoing, where they will find the proof that it was actually you. If all they have is logs from a honey pot, then you can still argue that you have an open wifi and it was a drive-by hacker who committed the crime.

In other words, they may not know the exact content of your hard drive, but they may know enough to get a warrant to search.

They can know a lot of things. (1)

Anonymous Coward | about 2 years ago | (#39147223)

But you need proof of the act, not knowledge of it.

Re:Only when they don't already know? (1)

Svartalf (2997) | about 2 years ago | (#39146865)

They have to know it specifically enough to get a warrant. Just "he has child porn on the drive" is insufficient.

Re:Only when they don't already know? (2)

lordmetroid (708723) | about 2 years ago | (#39146949)

Some locks simply does not have keys. They may try to force me but they will be unsuccessful.

Re:Only when they don't already know? (1)

therealkevinkretz (1585825) | about 2 years ago | (#39146959)

It's not EXACTLY the same thing. It's information (which is at best an abstraction of an abstraction of a description of what might be evidence - hardly a "dead body") which is meaningless without the addition of information stored in (in this case) the woman's mind. Forcing her to provide it is the same as forcing her to tell where she was when the body was put in the garage.

Re:Only when they don't already know? (0)

Anonymous Coward | about 2 years ago | (#39146967)

But with that, couldn't they just pretend to know that the person has CP on their computer and force them to decrypt it?

Re:Only when they don't already know? (1)

pz (113803) | about 2 years ago | (#39147297)

The article suggests that that particular case (one involving child pornography observed on a laptop at a routne border check) would be more like: a cop walks past your open garage door and sees something that looks very much like a dead body. By the time he returns with a search warrant, the garage is closed and locked. The government has the testimony of a police officer that you have a dead body in your garage, but the physical evidence would make it a much stronger case.

So the government knows that something very illegal exists in your garage (or on your laptop), but doesn't know the details and doesn't have the physical evidence to present at trial. The ruling is that under such circumstances, you can be compelled to unlock your garage (or decrypt your laptop).

That's how I see it. Sure would be nice if someone with a J.D. could chime in.

Re:Only when they don't already know? (4, Informative)

Anonymous Coward | about 2 years ago | (#39146617)

The EFF Covers things pretty well.

http://www.youtube.com/watch?v=gohLZVAJAiI

Watch that.

Re:Only when they don't already know? (0)

Anonymous Coward | about 2 years ago | (#39147033)

The EFF Covers things pretty well.

http://www.youtube.com/watch?v=gohLZVAJAiI

Watch that.

the video ends in jail :O

Re:Only when they don't already know? (0)

Anonymous Coward | about 2 years ago | (#39147233)

are you one of those guys that writes whodunit in detective novels?

Re:Only when they don't already know? (4, Insightful)

uganson (1173241) | about 2 years ago | (#39146631)

So the government just have to say: we know that you harddrive contains X, and they force you to decrypt it.

Of course, when it is decrypted and it turns out that it didn't contain X, they will just say... sorry!

Re:Only when they don't already know? (5, Funny)

Anonymous Coward | about 2 years ago | (#39146695)

So the government just have to say: we know that you harddrive contains X, and they force you to decrypt it.

Of course, when it is decrypted and it turns out that it didn't contain X, they will just say... sorry!

Hogwash. No way they're going to say sorry.

Re:Only when they don't already know? (5, Informative)

Kjella (173770) | about 2 years ago | (#39146827)

They can't just "say it". The other case was quite exceptional, the suspect did voluntarily show the decrypted disc to the customs officer, the customs officer found kiddie porn but as the laptop was powered down it wouldn't open again without a password. So they had proof he could access it, testimony that they'd actually observed it and a chain of evidence that the contents had not changed since then. That's a whole different level of knowing than just "knowing" they're involved in something illegal.

Re:Only when they don't already know? (2)

therealkevinkretz (1585825) | about 2 years ago | (#39146973)

Also, you have a much lower (nonexistent?) expectation of privacy when crossing the border than you do otherwise.

Re:Only when they don't already know? (2)

Coopjust (872796) | about 2 years ago | (#39147287)

Also in Boucher's case they were able to get specific, and in Boucher's case, he only used a container, so files with names suggesting CP were there, and the defendant voluntarily decrypted them so they could be viewed.

The ICE agent examined the computer and saw a file labeled “2yo getting raped during diaper change,” but was unable to open it. After the suspect navigated to the encrypted portion of the hard drive, the ICE agent located and examined several videos or images that appeared to be child pornography. Id. The district court concluded that the “foregone conclusion” doctrine applied under those facts because any testimonial value derived from the act of production was already known to the Government and therefore added nothing to its case

The circumstances are different here, hence why a foregone conclusion was not found.

Re:Only when they don't already know? (1)

Hatta (162192) | about 2 years ago | (#39147437)

So they had proof he could access it, testimony that they'd actually observed it and a chain of evidence that the contents had not changed since then. That's a whole different level of knowing than just "knowing"

If they have so much evidence, why don't they just present that evidence to the jury and let them decide? If the encryption key isn't incriminating, they don't need it to make their case. If the encryption key is incriminating, then it's protected by the 5th amendment.

It's really quite simple, and the judge in Boucher got it completely wrong. He needs to go back to law school and take an elementary logic class.

Re:Only when they don't already know? (1)

The Moof (859402) | about 2 years ago | (#39146831)

In theory, this is why warrants exist. They would need to get a warrant to force that decryption. That means they must convince a judge that there's reasonable suspicion they will find exactly what they're searching for. It's similar to how police can't come force themselves in my door, tell me there's a body in my house, and go looking for evidence of anything illegal.

However, given how the whole civil rights thing has been going these days, the warrants may just turn into a rubber-stamp process, and you may be right in the end.

Re:Only when they don't already know? (5, Interesting)

Lumpy (12016) | about 2 years ago | (#39146985)

Sounds great, I'll support that as soon as they put a penalty for the law enforcement being wrong.

This is the problem, they CAN go on fishing expeditions without any recourse. They can smash down a door and kill the family dog on accident and the family does not get all damages covered, they get told "sucks to be you"

As soon as I get to sue the Cops that did the deed and the city department for all damages and legal costs I'll support that warrants are legitimate.

Re:Only when they don't already know? (1)

lordmetroid (708723) | about 2 years ago | (#39147067)

Without a warrant the law-enforcers are not permitted to do a search, getting a warrant permits them to do so. Usually with a search warrant for a house that means they either ask the owner to cooperate and open the door but if the owner is not cooperative, they will simply break the door. The same principle should logically be applied to search warrant for a hard-drive. Though I would like to see the law enforcers try to break into the hard-drive. :)

Re:Only when they don't already know? (0)

Anonymous Coward | about 2 years ago | (#39146861)

You may get a sorry,

but i thought anything they find that is illegal but isn't what they were looking for is now wrongfully obtained and can no longer be used against you.
They also can't get a search warrant based on anything they accidentally found: "yeah we wrongfully decrypted it so we now know it for certain!!"

IANAL and I've never been to the U.S. So I don't know that holds truth over there.

Re:Only when they don't already know? (1)

DarkOx (621550) | about 2 years ago | (#39147259)

Now they CAN use they discovered in pursuit of an otherwise legal search. IE If they get a warrant to open your safe, in search of forged bonds and also find the kilo of coke in their they can absolutely used it as evidence in the existing case and even charge you with additional crimes.

If they get a warrant to search your safe and they find drugs in your fridge than they would not be able to use it. The court would say "You had a warrant to search a safe you had not reason be looking in the fridge, anything you found there or looked into further as a result is fruit of the poison tree."

Re:Only when they don't already know? (1)

iamgnat (1015755) | about 2 years ago | (#39147307)

but i thought anything they find that is illegal but isn't what they were looking for is now wrongfully obtained and can no longer be used against you.

IANAL either, but my understanding (in the physical world) is that if they have a warrant to search your garage for the dead body and stumble onto your cocaine stash that you keep under the workbench, you're boned on that too. I believe they have to get the warrant amended at that point, but so long as the new illegal item was found during the reasonable execution of the original warrant I think they are good. Now if the warrant is for the garage and you (because you are an idiot) let them use your bathroom and they rifle through your dresser when you are not paying attention, then anything they find is inadmissible (at least without a battle).

How that would/should translate in the digital world of access to a harddrive I don't know. My gut says that warrants should be limited to "directory X", but if they already knew that much would they really even need the contents anymore? Allowing the them to search the entire harddrive seems more akin to "we know he's done *something* bad so we want to search him, his car, his office, and anywhere else he has been in the last 10 years".

Re:Only when they don't already know? (0)

Anonymous Coward | about 2 years ago | (#39147387)

You are asking the wrong question. The correction question is:

If they say they are looking for X, and then it turns out they find Y, what happens?

Re:Only when they don't already know? (1)

firex726 (1188453) | about 2 years ago | (#39146655)

I think it's that whether or not that they know there is or is not incriminating evidence on the drive. Not that they know the exact contents.

Perhaps something like "I have incriminating evidence on this drive, therefore I will not decrypt it" vs. "I don't know what may or may not incriminate me on this drive, thus I will not decrypt it".

Re:Only when they don't already know? (2)

Nidi62 (1525137) | about 2 years ago | (#39146679)

Why only if the government doesn't already know what it contains? Does that mean that they can force you when they already know what it contains?

That doesn't make sense to me.

I think the point of the ruling is to avoid fishing expeditions. If the authorities have probable cause or a reason to believe there is information relevant to an investigation on your hard drive, then a warrant would allow them to compel you to decrypt it. But they can't just force you to decrypt a hard drive without any evidence of a crime having been committed.

Re:Only when they don't already know? (-1, Redundant)

Bill_the_Engineer (772575) | about 2 years ago | (#39146943)

This.

Re:Only when they don't already know? (5, Informative)

Kjella (173770) | about 2 years ago | (#39147393)

Actually this is a double smackdown. They hold that

1) The act of decrypting would be testimonial in proving your control over the encrypted container.
2) Even if the decryption wasn't testimonial, compelling you to produce a part of the chain of evidence is also prohibited by the 5th amendment.

This is pretty much a full victory that your encrypted contents are immune from warrants, expect new keylogger laws shortly though... And it still needs to stand in the US Supreme Court before it applies to the whole US, but the ruling seems sound.

Re:Only when they don't already know? (2)

somarilnos (2532726) | about 2 years ago | (#39146717)

Same as with any search warrant, they have to establish probable cause to search or seize property. If they don't know what it contains, then they don't have probable cause to search it.

Re:Only when they don't already know? (0)

Anonymous Coward | about 2 years ago | (#39146755)

I agree it doe snot make sense, but for another reason.
Their is the issue of what level of detail they need.
If they want to search it then of course they already suspect that they will find something illegal.
What level of proof and what level of detail is needed is the question?

Re:Only when they don't already know? (1)

betterunixthanunix (980855) | about 2 years ago | (#39146757)

The only case I am aware of that could be a precedent for this was the man who showed a border guard the child pornography on his laptop, but the guard shut down the laptop without first making a copy of the hard drive. That defendant was forced to decrypt the laptop; I disagree with that ruling, I think that if the government screws up like that then it should not be the defendant's job to fix their mistake, but the courts disagree with me.

Re:Only when they don't already know? (1)

slackware 3.6 (2524328) | about 2 years ago | (#39147229)

Maybe the guard was offended by the kiddie porn and was trying to get it out of his sight as quick as possible. By your logic if the cops see a dead hooker in your trunk and they close the trunk till the forensic team gets there they should not be able to get the keys from the suspect to open the trunk again. It is their fault they closed the truck and the suspect should be able to drive away with his dead hooker. The cops should have immediatly removed the body while they had the chance they screwed up, the defendant shouldn't have to provide his keys for the cops to open the trunk because that would be self incrimination and take away his right to having dead hookers in his trunk.
You sir are an idiot or you have something to hide on your computer.

oh noes, a scumbag is going to jail (-1, Troll)

alen (225700) | about 2 years ago | (#39146575)

this alleged scumbag stole millions of $$$ and helped the housing bubble become a bubble

too bad for her the law is that you have to turn over evidence of your crime to the police if they find out you have it

Re:oh noes, a scumbag is going to jail (5, Insightful)

Anonymous Coward | about 2 years ago | (#39146603)

No self-respecting tyrant would try to attack your rights without an excellent strawman. In your example, the scumbag is the strawman.

Re:oh noes, a scumbag is going to jail (-1)

Anonymous Coward | about 2 years ago | (#39146675)

Shut the fuck up you paedophile scum. You better watch your back.

Re:oh noes, a scumbag is going to jail (4, Insightful)

therealkevinkretz (1585825) | about 2 years ago | (#39147001)

Her rights don't depend on you being more or less annoyed at what she's alleged to have done.

That what governments have always done - relied on the ignorance of the populace to usurp the rights of the unpopular to establish a precedent that's eventually used against others.

Re:oh noes, a scumbag is going to jail (0)

alen (225700) | about 2 years ago | (#39147069)

the law is there to stop the police from torturing you and beating out a false confession. the constitution was never meant to stop the police from gathering evidence of criminal activity. or enable criminals to hide it

encrypted cell phones (0)

Anonymous Coward | about 2 years ago | (#39146585)

I'd hope this applies to encrypted cell phones as well. I use TextSecure on my Android phone.

Re:encrypted cell phones (1)

MightyYar (622222) | about 2 years ago | (#39146623)

Did you just imply that you have evidence of wrongdoing on that phone?

Foregone conclusion? (1)

Hatta (162192) | about 2 years ago | (#39146619)

If you're absolutely certain what's in the encrypted archive, you don't need the encryption key at all.

Re:Foregone conclusion? (1)

Xylaan (795464) | about 2 years ago | (#39146693)

I think that if they had other evidence that there were encrypted incriminating evidence, such as an email to a third party referring to them, they might have had better luck.

Re:Foregone conclusion? (2)

betterunixthanunix (980855) | about 2 years ago | (#39146775)

Re:Foregone conclusion? (3, Insightful)

Hatta (162192) | about 2 years ago | (#39147261)

I'm aware of that. It's a really bad decision. If the officer's testimony that the documents existed was sufficient to prove that the documents existed, the jury should be satisfied without seeing the documents. If the testimony of the officers was insufficient to convince the jury that the documents existed, then there is no foregone conclusion at all.

The decision is facially nonsensical. The judge fails not just at applying the constitution, but basic logic.

How can they force you to remember something? (5, Funny)

backslashdot (95548) | about 2 years ago | (#39146627)

Seriously, cause my own memory really sucks, it would be nice if i could make myself remember things. How do i waterboard myself?

Re:How can they force you to remember something? (-1)

Anonymous Coward | about 2 years ago | (#39146647)

Please do waterboard yourself for this post.

Re:How can they force you to remember something? (0)

Anonymous Coward | about 2 years ago | (#39146863)

But use beer instead of water.

Re:How can they force you to remember something? (1)

philip.paradis (2580427) | about 2 years ago | (#39146835)

You get one of these [h2ohno.net] , get yourself extraordinarily drunk, and repeatedly attempt to hurl yourself down aforementioned item with your face oriented downward. At least that's how I think you do it.

Did the submitter not read the article...? (4, Informative)

omega6 (1072658) | about 2 years ago | (#39146629)

/. Headline: US Appeals Court Upholds Suspect's Right To Refuse Decryption Linked Headline: Ruling Stands: Defendant Must Decrypt Laptop

Re:Did the submitter not read the article...? (5, Informative)

Anonymous Coward | about 2 years ago | (#39146867)

I think they just linked the articles confusingly.
The first link is the 2nd Circuit Court of Appeals on Fricosu, which is a different case still ongoing.
The second link is the 11th Circuit Court of Appeals for another case where they now decided that forcing him to decrypt his hard drive would violate his 5th Amendment rights.

Re:Did the submitter not read the article...? (0)

Anonymous Coward | about 2 years ago | (#39146909)

New lines, dude. New lines.

Re:Did the submitter not read the article...? (0)

Anonymous Coward | about 2 years ago | (#39146921)

Different case, amigo.

Re:Did the submitter not read the article...? (1, Interesting)

Rogerborg (306625) | about 2 years ago | (#39147279)

And Slashdot hits a new low, somewhere in the slime below the bottom of the scraped out barrel.

Sure, most of the time the summary is just biased, misleading, or inaccurate. But to boldly claim the exact opposite of the clear headline and content of linked article? Jesus wept.

I know there's no real pretence that the "editors" are anything other than Malda's old college drinking buddies - or the very small shell scripts that they wrote a decade ago - but either way, "Soulskill" needs to be sacked or re-written.

But how do you know if you know? (4, Insightful)

rebelwarlock (1319465) | about 2 years ago | (#39146641)

Let's say, hypothetically, John Doe gets brought up on child pornography possession charges. He has one computer in his home, and the cops are reasonably sure that said porn was accessed and stored at that physical location only. They order him to decrypt his hard drive, because they know it has evidence of his illegal porn habits. He replies, "No it doesn't. It has other stuff. Stuff you don't know about. You can't see it."

Now, they could say that they know for certain that he's a lying sack of crap and force him to decrypt it anyway. No child porn evidence, but he's be embezzling from his company, according to what they find. Now what?

Re:But how do you know if you know? (3, Informative)

Anonymous Coward | about 2 years ago | (#39146793)

Let's say, hypothetically, John Doe gets brought up on child pornography possession charges. He has one computer in his home, and the cops are reasonably sure that said porn was accessed and stored at that physical location only. They order him to decrypt his hard drive, because they know it has evidence of his illegal porn habits. He replies, "No it doesn't. It has other stuff. Stuff you don't know about. You can't see it." Now, they could say that they know for certain that he's a lying sack of crap and force him to decrypt it anyway. No child porn evidence, but he's be embezzling from his company, according to what they find. Now what?

Fruit of the poisonous tree, that evidence would be inadmissible.

This is first year law school stuff...

Re:But how do you know if you know? (1)

TC Wilcox (954812) | about 2 years ago | (#39146901)

Fruit of the poisonous tree, that evidence would be inadmissible. This is first year law school stuff...

If he still has a job after news leaks that he was accused of possessing child pornography he won't after law enforcement goes to his employer looking for evidence of embezzling *their* because they can't use the evidence on his computer...

Re:But how do you know if you know? (1)

TC Wilcox (954812) | about 2 years ago | (#39146917)

If he still has a job after news leaks that he was accused of possessing child pornography he won't after law enforcement goes to his employer looking for evidence of embezzling *their* because they can't use the evidence on his computer...

there != their Too bad there is no edit button, huh....

Re:But how do you know if you know? (0)

Anonymous Coward | about 2 years ago | (#39147057)

Any halfway decent lawyer would then sue the police department for defamation of character and for illegal harassment, and he'd live happily ever after on the millions of dollars of damages (not to mention punitive) he won... still happy ending for the criminal.

Re:But how do you know if you know? (0)

Anonymous Coward | about 2 years ago | (#39147095)

Yes, this is stuff learned in Criminal Justice 101, but in reality, a jury doesn't give a shit about fruit of the poisonous tree or basic legal concepts. They are there to render a verdict as fast as they can, so they don't lose their jobs, their business, or other items. A DA badgering a jury of people who have zero clue about computers, almost certainly will end up with a guilty verdict, even if the defense gets the evidence stricken from the record. A judge telling a jury "ignore that evidence" means squat.

This can consist of a DA saying, "This guy possesses child porn. Here are some pictures exactly like the ones that we suspect are on his hard drive." Jury sees those, convicts.

Re:But how do you know if you know? (1)

Joehonkie (665142) | about 2 years ago | (#39146807)

Duh, that's when you plant the child porn on his computer and proceed as planned to avoid embarrassment.

Re:But how do you know if you know? (5, Insightful)

betterunixthanunix (980855) | about 2 years ago | (#39146811)

Except that the cops believing someone is guilty is not the same as the cops actually knowing that a hard drive contains evidence. If all we cared about was whether or not the cops believed someone to be guilty, we would not even bother holding trials.

Re:But how do you know if you know? (1)

somarilnos (2532726) | about 2 years ago | (#39146839)

In theory, if the system is working properly, a search warrant has a list of specific things that can and can not be searched for. If they're searching your home, there is a scope - they're looking for things specifically related to the crime that they have probable cause to search for. So in the same working theory, let's say that they obtain a search warrant to look specifically for images, videos, and web history relating to pornographic images of children (or however they want to word this). In the perfect world, that means that anything they find outside of that scope is inadmissible in a court of law, and, that if they investigate further solely based on the information found there, anything they find is inadmissible. Colloquially, it's called "Fruit of the poisonous tree".

Re:But how do you know if you know? (1)

Anonymous Coward | about 2 years ago | (#39146945)

If you've got a good attorney, it's typically much closer to a perfect world in your analogy than usual.

I've had them come up with trumped up stuff on a warrant, get the warrant wrong and step outside the confines of the same- case dies on the spot if your attorney's good and presses the issue. The reason the Fourth Amendment is slavishly watched out for by LEOs is the consequences of what happens the moment that someone proves the warrant invalid- their case and any investigation (including falsified stuff...) goes POOF and they can't even TRY that case again.

Re:But how do you know if you know? (4, Informative)

Hatta (162192) | about 2 years ago | (#39146957)

In the perfect world, that means that anything they find outside of that scope is inadmissible in a court of law, and, that if they investigate further solely based on the information found there, anything they find is inadmissible. Colloquially, it's called "Fruit of the poisonous tree"

Of course, we don't live in a perfect world, and that's not what "fruit of the poisonous tree" means at all. "Fruit of the poisonous tree" only applies to evidence that was obtained illegally. If the search was performed legally, anything a cop sees incident to that search, even if it's outside the scope of the warrant, is admissible.

If a cop illegally searches your house for weapons, and finds drugs, that's not admissible. If he gets a warrant to search your house for weapons, and finds drugs, that's admissible. If he searches your house on exigent circumstances(e.g. he claims he saw a suspect flee towards your property), and he finds drugs, that's also admissible.

Re:But how do you know if you know? (1)

elrous0 (869638) | about 2 years ago | (#39146971)

That's the kind of scenario the 4th Amendment was intended to address. Unfortunately, the Constitution has become toilet paper when it comes to digital possessions and effects. And the Supreme Court, being a bunch of ancient farts (and a *conservative* bunch of ancient farts at that), has had its thumb implanted up its ass on the whole issue of anything related to "one of them new-fangled computing boxes" for a long time now.

Theoretically, in the non-digital world, the cops would have to have a warrant to search your stuff, one where they have to go before a judge and showing probable cause and some indication of the kind of material what they're looking for and the scope of the search. If they found evidence of a different crime, they could seize it, but would later have to get a separate search warrant for it too.

In the post-911 digital world, who knows?

Headline contradicts atricle (1)

gatkinso (15975) | about 2 years ago | (#39146651)

Two words: thumb drive.

Re:Headline contradicts atricle (1)

Coopjust (872796) | about 2 years ago | (#39147351)

Bad editing with the recent Fricosu case (foregone conclusion reached, judge compelling decryption) and the Doe case (what headline refers to, no foregone conclusion, judge rejecting compelled decryption) both in the summary.

Really? I mean really? (5, Informative)

Xylaan (795464) | about 2 years ago | (#39146663)

The first link is to a completely different case. Similar story, except that one ruled that the defendant must decrypt their laptop and was heard by the 2nd Circuit. The second link refers to the 11lth Circuit case.

Re:Really? I mean really? (1)

Hardhead_7 (987030) | about 2 years ago | (#39146731)

Breaking News! The editors of Slashdot still haven't figured out how links should work. Often, the hyperlink text has nothing to do with the linked article, or is at best hard to figure out.

Re:Really? I mean really? (2)

Cornwallis (1188489) | about 2 years ago | (#39146837)

Oh rubbish! There is an excellent description of the "behind the scenes" technical detail that goes into /. editorial management here [blogspot.com] .

Re:Really? I mean really? (1)

Nemesisghost (1720424) | about 2 years ago | (#39146777)

Correct. The 1st link she has to decrypt it because the trial judge ordered her to do so, and the appellate judge ruled against her because she hadn't actually been convicted of anything. Which I agree with. I'm sure in light of the 2nd link, she might win the appeal though, which is what I think should have happened in the 1st place.

Will eventually get to SCOTUS (1)

netwarerip (2221204) | about 2 years ago | (#39146667)

But with the 5-4 majority it's just a foregone conclusion that they will rule on the gov't side. Fifth amendment only works on tv.

New Miranda Warning (5, Insightful)

mcwop (31034) | about 2 years ago | (#39146753)

You have the right to remain silent. You have the right to remain encrypted. Anything you say, do, or decrypt can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

Re:New Miranda Warning (1)

CitizenJohnJohn (640701) | about 2 years ago | (#39146855)

I think you mean:

Lbh unir gur evtug gb erznva fvyrag. Lbh unir gur evtug gb erznva rapelcgrq. Nalguvat lbh fnl, qb, be qrpelcg pna naq jvyy or uryq ntnvafg lbh va n pbheg bs ynj. Lbh unir gur evtug gb fcrnx gb na nggbearl. Vs lbh pnaabg nssbeq na nggbearl, bar jvyy or nccbvagrq sbe lbh. Qb lbh haqrefgnaq gurfr evtugf nf gurl unir orra ernq gb lbh?

Not secure enough (1)

Dareth (47614) | about 2 years ago | (#39147289)

That is not secure enough. I encrypted it again with the same measure for double the security:

you have the right to remain silent. you have the right to remain encrypted. anything you say, do, or decrypt can and will be held against you in a court of law. you have the right to speak to an attorney. if you cannot afford an attorney, one will be appointed for you. do you understand these rights as they have been read to you?

Site used here [google.com]

Re:Not secure enough (2)

CitizenJohnJohn (640701) | about 2 years ago | (#39147345)

I'd have got away with it if it wasn't for you pesky kids.

What if you honestly forgot? (1)

elrous0 (869638) | about 2 years ago | (#39146795)

Would that mean an unappealable life sentence?

Re:What if you honestly forgot? (3, Informative)

Svartalf (2997) | about 2 years ago | (#39146965)

No... You can get a Writ of Habeas Corpus at some threshold. People keep claiming that they can hold you indefinitely under contempt- which isn't wholly true as this violates the Fifth Amendment.

Re:What if you honestly forgot? (4, Informative)

betterunixthanunix (980855) | about 2 years ago | (#39147049)

Unfortunately, you might be held for many years before they finally stop harassing you:

https://en.wikipedia.org/wiki/H._Beatty_Chadwick [wikipedia.org]

14 years in prison because his wife claimed he was hiding money which the judge demanded that he produce for the court. In a child pornography case, you might spend more time in prison for refusing to decrypt your hard drive than you would have spent if you had been convicted.

Re:What if you honestly forgot? (1)

nedlohs (1335013) | about 2 years ago | (#39147431)

No you wouldn't.

It's only civil contempt that has the "spend forever in jail even though it hasn't been proved you did anything wrong" feature. Criminal contempt doesn't allow that - they have to prove the contempt first and there's a sentence rather than an indefinite time period of "until you tell us".

In a child pornography case it's going to criminal not civil.

Re:What if you honestly forgot? (-1)

Anonymous Coward | about 2 years ago | (#39147159)

If you cannot remember one short string of characters, you deserve to be put away for life. Stop coddling people for their incompetence.

Unenforceable laws (2)

JSBiff (87824) | about 2 years ago | (#39146979)

It seems to me that the courts generally frown on "unenforceable laws". In this case, if the government can't decrypt your hard drive without your cooperation, they can't really "force" you to reveal it. They could try to torture you for it, but that's, at least presently, illegal. They could throw you in jail, but if you know that the penalty for refusing to cooperate is less than the penalty for whatever crime your data might provide proof of, then the rational thing is just to take the penalty for refusing to cooperate.

So, fundamentally, unenforceable.

Re:Unenforceable laws (3, Informative)

betterunixthanunix (980855) | about 2 years ago | (#39147135)

They could throw you in jail, but if you know that the penalty for refusing to cooperate is less than the penalty for whatever crime your data might provide proof of

You might not know that. The current record for longest time served for contempt of court is H. Beatty Chadwick, who spent 14 years in prison for failing to surrender money his wife claimed he was hiding during a divorce case. He could not have been imprisoned at all had he "cooperated," which in this case meant producing money that he did not have. Now, suppose you are accused of possession of child pornography, and you refuse to decrypt; if convicted, you might spend 5 years in prison, but you might be held indefinitely for failing to decrypt -- it is up to a judge to decide whether or not you have been held long enough. How do you even make a decision in that situation?

Now, deniable encryption systems might help somewhat in these cases, because in the United States the prosecution would have to prove that there is a second secret key that you failed to produce, which in a good system should be a hard thing to prove. Unfortunately, this could also mean being held in contempt if the police claim that they saw incriminating evidence on your computer, so clearly the passphrase you provided is not the one they are looking for.

Re:Unenforceable laws (2)

ShooterNeo (555040) | about 2 years ago | (#39147347)

I was quite curious about the Beatty Chadwick case, so I looked it up. Actually, while the headlines say he had to produce the money, that isn't quite true : he also would refuse to sign documents needed to actually investigate where the money was. Had he cooperated with the effort to find the money, and no funds could be found, he would have been released much sooner or not jailed at all. Most likely, he does have access to the money somehow, and he felt that giving up his life's fortune of severald million dollars (plus 14 years of interest) was not something he wanted to do. Not that he has enough lifespan left to spend all that money : I think he endured 14 years of prison just to stick it to his ex wife.

Re:Unenforceable laws (1)

JWW (79176) | about 2 years ago | (#39147249)

I don't agree.

You're assuming that the penalty for not cooperating is less than the penalty for the crime.

This is of course why the penalty for not cooperating is, most of the time, being held in jail indefinitely without the chance for bail.

File as the Key (1)

Fnord666 (889225) | about 2 years ago | (#39146995)

IANAL but it seems like this decision hinges on the fact that the act of decrypting the hard drive requires the encryption key, which is in turn a product of the mind. On that basis the judge has connected it to the fifth amendment and self incrimination rather than the model put forth by the prosecution of a simple lock and key. The implication that I am seeing here is that if you were to encrypt your hard drive, but use a file on a USB drive as the encryption key rather than a passphrase, then this decision would not be applicable and you could be compelled to turn over the USB drive.

Re:File as the Key (1)

Coopjust (872796) | about 2 years ago | (#39147323)

They'd still have to prove that you had the USB drive that decrypted the drive. If they had it already, they could decrypt it without you; if they don't, they would need to confessing to having it somewhere in some form or otherwise proving it exists and is yours.

Go Truecrypt!!!!! (5, Informative)

Pepebuho (167300) | about 2 years ago | (#39147009)

From the Opinion:
"But random characters are not files; because the TrueCrypt program displays random characters if there are files and if there is empty space, we simply do not know what, if anything, was hidden based on the facts before us. It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating. In short, the Government physically possesses the media devices, but it does not know what, if anything, is held on the encrypted drives."

What I want to know (4, Interesting)

medcalf (68293) | about 2 years ago | (#39147041)

What encryption product was used? It sounds like it is doing its job.

Talk about a story about "nothing happened" (1)

erroneus (253617) | about 2 years ago | (#39147099)

The appeals court does not [like to] rule on cases which have not be decided meaning the defendant in this case has not been acquitted nor been convicted. So the court rejected the appeal. The appeals court did not rule on the matter AT ALL.

Now if she were to be acquitted or convicted, the appeals court could then chime in on details of the case such as whether or not forcing someone to decrypt (make available) incriminating evidence is a violation of the 5th amendment and only then if she were forced to and she was able to remember her password and that there was, in fact, incriminating evidence and was convicted based on the evidence which was previously encrypted.

11th Circuit Court of Appeals (5, Interesting)

wcrowe (94389) | about 2 years ago | (#39147247)

What I find heartening is that this is the 11th Circuit Court (Alabama, Georgia, Florida) -- i.e., not a court known for "wacky" decisions. If it were the 9th Circuit I would be more worried that this fight isn't over.

I particularly liked how the court used the government's own analogy of a combination to a safe to make their ruling. The ruling explained that the Truecrypt software shows random characters even if nothing exists on the hard drive, so if the hard drive is like a safe -- as the government contends -- then it can be full of incriminating evidence, or completely empty. There is no way for the government to know without opening the safe. Therefore the government cannot use the argument that the evidence was a foregone conclusion. Additionally, the court (thankfully) acknowledged that just because the defendant owns a safe, is not an indication that any criminal activity is going on. The ruling both turned the government's analogy on its head, and revealed that the court has a fairly good understanding of the technology.

 

Why not the 4th A (1)

GLMDesigns (2044134) | about 2 years ago | (#39147277)

I would have thought it would have been the 4th Amendment, not the 5th that really counted in this case.

4th Amendment
  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5th Amendment

  • 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.[1]

I'm happy the government was thwarted but I need to read the decision closer to see why the justices did not select the 4th A.

Bomb password? (3, Insightful)

AbRASiON (589899) | about 2 years ago | (#39147313)

Is there an encryption system available where if you put in a specifically bad password it damages the data forever?
I have no interest in kiddie porn but I sure as shit don't agree with people forcing me to decrypt.

Am I missing something? (1)

spickus (513249) | about 2 years ago | (#39147399)

FTFA: "A federal appeals court is rejecting an appeal from a bank-fraud defendant who has been ordered to decrypt her laptop so its contents can be used in her criminal case."

"The 2nd U.S. Circuit Court of Appeals, however, sided with the governmentâ(TM)s contention that an appeal was not ripe"

"The appellate court wrote Wednesday that it lacks âoejurisdiction to consider the resulting proceeding under any exception to our usual finality rules.â"

"If she does not decrypt the drive by monthâ(TM)s end, as ordered, she could be held in contempt and jailed until she complies."

Is this Fark?

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