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 beendiscussedmanytimespreviously. 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."
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".
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?
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."
Doesn't work like that usually, random bits are thrown in precisely to help prevent cryptanalysis IIRC (at least thats what I remember from reading Bruce Schiner and his cryptography books)
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.
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.
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.
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.
Truecrypt provides something along these lines. It doesn't work exactly as you describe, but you can basically have 2 sets of encryption keys. One that decrypts your benign filesystem, the other that decrypts your hidden filesystem.
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.
Watch this : http://video.google.com/videoplay?docid=-4097602514885833865 [google.com]
You should never, ever, tell them anything you can avoid telling them. It can do you absolutely no good and even completely innocent things can be used against you. Sad, but it's what we've come to.
Cop: Hello sir, how are you today? You: I WANT MY LAWYER! Cop: Uh. I'm just saying h... You: I WANT MY LAWYER! Cop:.... You: I WANT MY LAWYER! (just for good measure) Cop: May I see some ID, Sir? You: I WANT MY LAWYER! Cop: Ok, let's talk at the station, then. You: I WANT MY LAWYER! Cop: Are you resisting arrest? You: I WANT MY LAWYER! Cop: Get on the ground with your hands above your head! You: I WANT MY LAWY... ARGH! DON'T TAZE ME BRO!
Result: You get arrested, confined, investigated, and are more likely to attract police attention in the future. Your day is ruined, you've wasted their time, and caused a scene for no reason. And all you had to do was NOT be a dick.
I've had friends who act like assholes when pulled over for speeding slightly, and then wonder why they end up with 3 different tickets. Meanwhile I've been pulled over 5 times in the last 2 years, and been let go with a warning, every time. Cops are people too - if you're polite, they'll be polite, if you act like a dick, they'll return the favour.
I had nothing to hide, let them search my vehicle. Didn't resist, was polite and as helpful as possible. When I asked why my licenses was suspended they said, they didn't know and that it was strange because their system usually gives a full reason. I was arrested and released on the spot due to procedure. One cop was "nice" enough to give me a ride to a local hotel as I was about 4 hours from home and had no vehicle.
I got back home and went to the DMV. There was a camera ticket taken of a car after I traded it in with a different person driving it. They said I could fight it and that I should get a lawyer. I would not have a license until after the full court battle went through. Instead I payed the $85 and went to an 8 hr class. Much less time and money.
When my court date came around I had a friend drive me to the town it happened in. I was looking to get my vehicle back and the stuff thrown out. The deal ended up I pay $80 fine for my license plate light being out. (the original reason I was pulled over) and $700 impound fee.
Again I could have fought it with a nice lengthy court battle, lawyer fees, impounded vehicle racking up charges, and there was still the chance that I would have won nothing. The law states "driving on a suspended license" and makes no exceptions for a mistakenly suspended license.
Sure I had almost $1000 for a screw up at the DMV, but I could have fought it, racked up 10x the cost in lawyer fees, had no car, have to get to a town 4 hours away, no way to get to work for 6+ months, and only a strong likelihood that I would have won.
In the end I'm sure that $1k was a boon to the small towns economy. I wouldn't doubt if the judge got a piece of it. The only time I had ever seen something so corrupt was when I had to get a friend out of a jail cell in Mexico. At least then I just payed the judge cash directly and he handed him over.
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?
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."
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.
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.
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.
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.
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.
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.
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)
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.
"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.
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.
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?"
"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.
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!)
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.
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.
by Anonymous Coward
on Thursday February 26 2009, @06:38PM (#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.
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."
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.
No, showing the cops evidence and then saying "gee, I didn't mean to show you that, you can't use that evidence" is forbidden, for pretty obvious reasons.
5th Amendment (Score:5, Insightful)
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 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...
Parent
Everyone, please watch this (Score:5, Informative)
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.
Parent
Re:5th Amendment (Score:5, Interesting)
Parent
Re:5th Amendment (Score:5, Funny)
"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."
Parent
Re:5th Amendment (Score:5, Insightful)
Parent
Re:5th Amendment (Score:5, Informative)
Parent
Re:5th Amendment (Score:5, Informative)
Doesn't work like that usually, random bits are thrown in precisely to help prevent cryptanalysis IIRC (at least thats what I remember from reading Bruce Schiner and his cryptography books)
Parent
Re:5th Amendment (Score:5, Funny)
Parent
Re:5th Amendment (Score:5, Insightful)
NEVER cooperate with the cops. If you are about to get in trouble, clam up...get lawyered up.
Once you start to cooperate a little, it appears....you can start to give up rights you have.
Some good info is here [flexyourrights.org]. Also, look up a film they did, it is available for free called Busted [youtube.com].
Parent
Re:5th Amendment (Score:5, Informative)
I think the following videos from a lawyer/law-professor and an ex-cop are about 10000% more informative on the subject. Long, but worth it.
Part 1: http://www.youtube.com/watch?v=i8z7NC5sgik [youtube.com]
Part 2: http://www.youtube.com/watch?v=08fZQWjDVKE [youtube.com]
Parent
Whats on the laptop, son? (Score:5, Funny)
"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...
Parent
Re:Whats on the laptop, son? (Score:5, Funny)
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.
Parent
Re:Whats on the laptop, son? (Score:5, Interesting)
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:
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.
Parent
Re:Whats on the laptop, son? (Score:5, Insightful)
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.
Parent
Re:5th Amendment (Score:5, Insightful)
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.
Parent
Re:5th Amendment (Score:5, Interesting)
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.
Parent
Re:5th Amendment (Score:5, Informative)
Truecrypt provides something along these lines. It doesn't work exactly as you describe, but you can basically have 2 sets of encryption keys. One that decrypts your benign filesystem, the other that decrypts your hidden filesystem.
Parent
Re:5th Amendment (Score:5, Interesting)
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.
Parent
Re:5th Amendment (Score:5, Informative)
Parent
Re:5th Amendment (Score:5, Insightful)
Yeah, that's a great idea.
Cop: Hello sir, how are you today? .... ... ARGH! DON'T TAZE ME BRO!
You: I WANT MY LAWYER!
Cop: Uh. I'm just saying h...
You: I WANT MY LAWYER!
Cop:
You: I WANT MY LAWYER! (just for good measure)
Cop: May I see some ID, Sir?
You: I WANT MY LAWYER!
Cop: Ok, let's talk at the station, then.
You: I WANT MY LAWYER!
Cop: Are you resisting arrest?
You: I WANT MY LAWYER!
Cop: Get on the ground with your hands above your head!
You: I WANT MY LAWY
Result: You get arrested, confined, investigated, and are more likely to attract police attention in the future. Your day is ruined, you've wasted their time, and caused a scene for no reason. And all you had to do was NOT be a dick.
I've had friends who act like assholes when pulled over for speeding slightly, and then wonder why they end up with 3 different tickets. Meanwhile I've been pulled over 5 times in the last 2 years, and been let go with a warning, every time. Cops are people too - if you're polite, they'll be polite, if you act like a dick, they'll return the favour.
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Re:5th Amendment (Score:5, Interesting)
I had nothing to hide, let them search my vehicle. Didn't resist, was polite and as helpful as possible. When I asked why my licenses was suspended they said, they didn't know and that it was strange because their system usually gives a full reason. I was arrested and released on the spot due to procedure. One cop was "nice" enough to give me a ride to a local hotel as I was about 4 hours from home and had no vehicle.
I got back home and went to the DMV. There was a camera ticket taken of a car after I traded it in with a different person driving it. They said I could fight it and that I should get a lawyer. I would not have a license until after the full court battle went through. Instead I payed the $85 and went to an 8 hr class. Much less time and money.
When my court date came around I had a friend drive me to the town it happened in. I was looking to get my vehicle back and the stuff thrown out. The deal ended up I pay $80 fine for my license plate light being out. (the original reason I was pulled over) and $700 impound fee.
Again I could have fought it with a nice lengthy court battle, lawyer fees, impounded vehicle racking up charges, and there was still the chance that I would have won nothing. The law states "driving on a suspended license" and makes no exceptions for a mistakenly suspended license.
Sure I had almost $1000 for a screw up at the DMV, but I could have fought it, racked up 10x the cost in lawyer fees, had no car, have to get to a town 4 hours away, no way to get to work for 6+ months, and only a strong likelihood that I would have won.
In the end I'm sure that $1k was a boon to the small towns economy. I wouldn't doubt if the judge got a piece of it. The only time I had ever seen something so corrupt was when I had to get a friend out of a jail cell in Mexico. At least then I just payed the judge cash directly and he handed him over.
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The Ammendment (Score:5, Informative)
Here's the full text:
I wonder, which part of "nor shall be compelled" did the honorable judge not understand?
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Re:The Ammendment (Score:5, Informative)
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."
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Re:The Ammendment (Score:5, Informative)
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.
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Re:The Ammendment (Score:5, Interesting)
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.
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Re:5th Amendment (Score:5, Informative)
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.
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Re:5th Amendment (Score:5, Insightful)
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.
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Re:5th Amendment (Score:5, Interesting)
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Re:5th Amendment (Score:5, Informative)
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How is this over turned. (Score:5, Insightful)
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.
Initial cooperation (Score:5, Insightful)
Re:Initial cooperation (Score:5, Informative)
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.
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Re:Initial cooperation (Score:4, Interesting)
so... good thing that you don't have that right in the first place?
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Misleading topic (Score:5, Insightful)
"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.
then what proof? (Score:5, Interesting)
So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?
Wow... (Score:4, Insightful)
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.
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I know this isn't exactly what's going on here, but how long until it is?
One word: (Score:4, Interesting)
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)
"What's this?" the student asked.
"That's your child's pinky. Now what's your password?"
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Re:One word: (Score:4, Insightful)
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Re:One word: (Score:5, Insightful)
"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.
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Would the smartass approach work? (Score:4, Interesting)
Waived his right against self-incrimination... (Score:5, Funny)
RTFO (Score:5, Informative)
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.
Here's how it works (Score:4, Informative)
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.
We need a destruction password in crypt! (Score:4, Interesting)
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)
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.
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Whoops (Score:5, Insightful)
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."
He let the cat out of the bag. (Score:5, Interesting)
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:So basically... (Score:4, Informative)
No, showing the cops evidence and then saying "gee, I didn't mean to show you that, you can't use that evidence" is forbidden, for pretty obvious reasons.
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