US District Ct. Says Defendant Must Provide Decrypted Data 767
An anonymous reader writes "If you're planning on traveling internationally with a laptop, consider the following: District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case. Laptop searches at the border have been discussed many times previously. This is the case where a man entered the country allegedly carrying pornographic material in an encrypted file on his laptop. He initially cooperated with border agents during the search of the laptop then later decided not to cooperate citing the Fifth Amendment. Last year a magistrate judge ruled that compelling the man to enter his password would violate his Fifth Amendment right against self-incrimination. Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."
sohp notes that "the order is not that he produce the key — just that he provide an unencrypted copy."
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".
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.
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...
Initial cooperation (Score:5, Insightful)
So you're not allowed to change your mind? (Score:3, Insightful)
So once you waive your rights, you are not allowed to re-invoke them?
This case will probably hit the SCOTUS.
It will be a case to watch, that's for sure!
Misleading topic (Score:5, Insightful)
"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.
Absurd (Score:3, Insightful)
He's still being compelled to provide evidence against himself, so I don't see how the fact that he initially cooperated waives his fifth amendment rights.
Wow... (Score:4, Insightful)
Guy walks through a security checkpoint in an airport.
Hello sir. May see ID?
Here you go.
Thanks. I see you have a backpack, may I check it?
Sure, no problem.
Oh, I see you have a laptop. I want to see what you have on it.
No, sorry, the material on it is personal. If you try and push me I can easily claim the 5th Amendment.
Ah, but you cannot because you initially cooperated with me when I asked for ID and wanted to searched your bag.
---
I know this isn't exactly what's going on here, but how long until it is?
Re: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.
Re:5th Amendment (Score:1, Insightful)
The article states he had to provide an unencrypted copy of the data because the government already knew what was in it, so the argument that producing the data would self incriminate is invalid because he would be telling the government anything they don't already know. Just providing the proof of what they know. Sounds even worse that giving up your rights because you initially cooperated. In this case what's to stop the police from saying they know whats in the files when they really are just guessing, and at what level do you say okay they "really" do know. If they really do know without any doubt what's in the files I find it odd that they need the files unencrypted.
Makes no sense (Score:3, Insightful)
Never talk to the police. Ever. (Score:3, Insightful)
As a reminder, never ever EVER volunteer information to the police. Get a lawyer, ALWAYS.
This was linked on Slashdot once before:
"Don't Talk to the Police" by Professor James Duane [google.com]
The policeman perceives his job as to "make arrests", and the DA's job is to "make convictions". They (mostly) care only that tey have an ironclad case, and not whether or not you are innocent.
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.
Re:Initial cooperation (Score:1, Insightful)
That part is misleading. I suggest reading the first link.
It looks like the initial cooperation provided probable cause that the laptop contained illegal documents.
So a subpoena was upheld forcing him to turn over an unencrypted copy of the drive.
Given probable cause there is no 5th amendment issue with the government executing a search warrant.
The issue decided in the case was wither him revealing his password would be considered self incriminating speech. His lawyers claimed it was like forcing him to admit to something... the government claimed it was more akin to forcing him to open his trunk when presented with a warrant.
I think the 'initial cooperation' language out of context is misleading.
Re:Misleading topic (Score:3, Insightful)
And how exactly will it be repealed without another constitutional amendment? And how exactly do you propose that support for such a repeal would be obtained? The "think of the children!" argument will get you a decent amount, sure, but nowhere near enough to pass an amendment.
No, what will more likely happen is that it'll continue to be slowly and unconstitutionally eroded just like...well, like the rest of the constitution.
Re:One word: (Score:5, Insightful)
"What's this?" the student asked.
"That's your child's pinky. Now what's your password?"
Re:5th Amendment (Score:3, Insightful)
The 5th amendment states: "No person
You cannot compare 1st and the 5th amendments, in the manner you did, because they do not have analogous effects. One prevents congress from making laws the other vests rights in an individual. You cannot waive your 1st amendment right because it is not granted by the 1st amendment, it is considered inalienable, and congress is prohibited from impinging on it by the 1st.
Also, this whole focus on the 5th amendment is a waste of time, Boucher cooperated with border patrol, he waived his 5th amendment right at that time. He told the cops everything. If he now wants to re-assert his 5th amendment right, he can, but the cops can testify against him. You cannot plead the 5th to prevent other people from testifying against you.
If you admit it is your laptop, you can plead the 5th at trial, but the cop can say "He said it was his laptop."
The cat is out of the bag, Boucher let it out, quit whining.
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."
"You have the right to remain silent" (Score:3, Insightful)
Re:Here's how it works (Score:3, Insightful)
Following up on my own posting (and again, IANAL), here's the type of thing that the 5th amendment is designed to protect you against:
In this case, #1 doesn't help the defendant because the government knows that the files they're looking for are on the Z: drive of the defendant's computer. #2 doesn't save him either because he already authenticated the documents when an ICE agent viewed them at the border crossing. Thus, no 5th amendment protection.
One other point: the prosecution assumes the defendant knows the password to the encrypted Z: drive (a PGPDisk volume). That's a reasonable assumption (it IS his computer), and it's enough to tilt the balance in their favor and get this court ruling.
Where it would get interesting would be if the defendant claims that he doesn't know the password. ("My friend created and opened the Z: drive on my laptop, but I don't know how to access it once it's closed again"). Or whether he claims he forgot it.
Those are desperate claims, but still... he's pretty much either got to co-operate (and therefore reveal (again) the child porn on his laptop), or find some way to continue not to provide the password on any legal grounds he can.
Re:The Ammendment (Score:2, Insightful)
> I wonder, which part of "nor shall be compelled" did the honorable judge not understand?
I think you should write and tell him! Those guys always get corrected by Slashdot posters! Who do they think they are, anyway?
Re:One word: (Score:4, Insightful)
Re:5th Amendment (Score:3, Insightful)
It's a pretty horrible notion; but the courts seem to want to make this abhorrent attitude the only reasonable way to deal with police.
Re:The Ammendment (Score:2, Insightful)
What you are really seeing here is the ramifications of all those political appointments. Incompetent people put in positions where they do not belong simply because the supported one political party over the other. How could any person in this position be so ignorant. You never ever give up your rights, your rights are guaranteed by law, all you do is choose to ignore them for as long as you choose to do so.
The grossly incompetent judge is basically saying is that once you choose to ignore your rights, you have now 'waived' your rights for ever. As a part of the legal system, it is the judge's responsibility to protect peoples rights, rights guaranteed by law, not to arbitrarily opine that they can now judges can choose who gets those rights and who loses them.
Ultimately you are still stuck with a problem, 'I forgot the password', now prove that statement false. I assume that same incompetent judge would cavalierly imprison a person who made that statement because 'no one ever forgets their password'. I wonder what the new criminal penalty will be for forgetting something, for not having perfect recall, perhaps it will be left up to the judges discretion and they will decide to you should have remembered all based upon their 'er' hunch.
Re:5th Amendment (Score:1, Insightful)
Re:then what proof? (Score:3, Insightful)
That would presumably be perjury. You might get away with it but really it's not something you want to be charged for.
Worse than going down for possessing child pornography?
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.
Re:then what proof? (Score:2, Insightful)
"I can't remember the password I used when I decrypted it for the police, but here is a backup before I encrypted it. As you can see, I'm very embarrassed about having these images, which is why I encrypted them, but their clearly not illegal. Can I go now?"
Re:So basically... (Score:4, Insightful)
They can use the evidence you gave them, but they can't force you to give them more evidence which is what this is about. The argument is they're forcing him to decrypt more data under the belief it contains more illegal illicit material. If he gives them the key to decrypt he further incriminates himself.
He can't take back the evidence he accidentally gave him, but he should have the right to the 5th amendment and not further incriminate himself. They should make the case for what they have, or get a search warrant for the computer and attempt to decrypt the data without his help.
Re:5th Amendment (Score:3, Insightful)
The police already knows what's in the safe, and they could also use brute-force to open it, but it's reasonable to ask the suspect to surrender without violation of the 5th amendment.
Sure, it's reasonable for the police to ask. Now, is it still reasonable for the suspect to decline the request?
Unless the suspect has the option to say "No" to the request, it's not really a request after all.
Now the question is, is it reasonable for the court to compel the defendant himself to open the safe (or suffer the consequences ...)?
I don't think, in this analogy, anyone is saying that it's wrong for the police to force open the safe. It's perfectly fine for them to, if they have the warrant (and I guess they do, in this case). It's a matter of whether one should be forced to incriminate himself, and I, for one, think the Fifth Amendment is fairly clear on that.
One additional point: (Score:3, Insightful)
Re:The Ammendment (Score:3, Insightful)
And here's the bigger problem: The border agents say they saw these files/images. What if they were wrong or lying, and there really is no 'bad file'? Is this guy going to be held in contempt and/or go to jail for not turning over something that might never have existed?
And what if he genuinely can't recall the password and doesn't have an unencrypted copy of the Z drive? How many times have we seen government officials on the stand say "I do not recall that event", and the judge says 'OK'? What makes this any different?
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.
Re:5th Amendment (Score:3, Insightful)
Here's what I don't get: why didn't the border patrol agent immediately instruct the guy to step away from the computer and walk across the room, then photograph the evidence? Also, how could somebody be so dumb as to show a border patrol agent child pornography in the first place? I mean, maybe I could see it if the person opens the computer and that's what's on the screen, maybe, but explicitly going through and showing off your stash of illegal videos to a border patrol agent has to be the dumbest thing any human being could possibly do short of showing off your collection of illegal narcotics in your suitcase at the same time.
Everything about this screams "The border patrol agent is lying" to me. I just have a really hard time believing that two people could both behave so unbelievably cluelessly in the same place over such a short period of time. Doesn't that normally cause some kind of tear in spacetime or something? :-D
Comment removed (Score:3, Insightful)
Re:The Ammendment (Score:3, Insightful)
Re:5th Amendment (Score:3, Insightful)
Re:Whoops (Score:2, Insightful)
Not only is your post unlike the case at hand (as discussed by the other children), you fail to apply the proper standard for criminal cases -- it's not "beyond the shadow of a dobut", it's "beyond a reasonable doubt." This makes a big difference.
Re:The Ammendment (Score:2, Insightful)
The government can force you to give them access to the contents of a safe by giving them the keys.
Giving the password to a collection of encrypted files is pretty similar to giving the keys to a safe full of incriminating documents. Therefore, it's entirely reasonable to argue that the government has the right to force the defendant to provide the "key" to his incriminating data.
Re:5th Amendment (Score:3, Insightful)
Funny :) When I first read your comment, I thought "... wow, that's a seriously cool refutation".
Of course, after 15 seconds of thought, it becomes apparent that your analogy doesn't work. laissez-faire capitalism wouldn't exist in a vacuum, and it's not an argument for anarchy - it's simply the rejection of government control over markets. Laws against fraud, theft, and murder would still apply.
Re:5th Amendment (Score:2, Insightful)
I would reply that providing a decrypted copy of the files would allow the government to more easily find out the key/password, because it would be much quicker to brute-force.
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.
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.
Re:5th Amendment (Score:5, Insightful)
Re:5th Amendment (Score:4, Insightful)
You didn't think to pay to get your car back, then sue for a refund, did you?
The key to dealing with police officers is to be perfectly polite on the spot, and complain\sue later.
Re:The Ammendment (Score:3, Insightful)
hmm, where are the brackets there?
or
?
or, to put the question better, does the rider "without due process of law" apply to both prohibitions, or only the one directly preceeding it. If it's the latter then I don't know why it was brought up, if it's the former than the 5th amendment has never been worth anything anyway.
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].
Re:5th Amendment (Score:2, Insightful)
Re:Not necessarily true. (Score:3, Insightful)
I concede your point. In every bullshit traffic violation, the only "evidence" against you is the cop's word that he saw you do something, and that's all the proof the court needs. I like to hpoe against hope that the standards are higher for more serious crimes, but.. you're probably right.
The password itself is not incriminating, therefore it's not protected by the 5th.
That's uh, the issue under contention here, isn't it?
My personal view is that this is no different from asking me for my house key. That person is under no obligation to give it up. If the police want to haul in a battering ram to knock the door down, as long as that's legal, they're welcome to try -- but if their battering ram can't knock the door down why should is that my problem? I'm under custody, you have access to the material -- if you can't unlock it, well c'est la vie.
the contents of the hard drive is not self-incrimination
The charge is that the contests of the hard drive are illegal. That's not just "evidence", that's the entire crux of the case. The question at hand is, "are the contents of this drive illegal?" If the prosecution can't prove that it is, that's their tough luck. If they can't view the contents of the drive then what the hell business do they have prosecuting this guy? Their inability to break encryptioon isn't the defendent's fault or problem. The state wants to prove that the guy did something wrong? Okay, let's see the proof. You have the guy's laptop, let's see why you think he's doing something illegal.
WELL SORRY YOUR HONOR BUT WE CAN'T SHOW YOU
Why not?
THE HARD DRIVE IS ENCRYPTED
I see. So you can't see what's on that hard drive?
NO YOUR HONOR
If you can't see what's on the hard drive, why do you think he did something illegal?
OH YOU KNOW.. A GUY SAID.. SOME STUFF.. HE THINKS HE MIGHT HAVE.. SEEN.. SOME THINGS..
Give me a fucking break. If the prosecution can't secure evidence for its own case, that is nobody's fault but thier own. Either you have a reason to detain the guy or you don't. If you can't show us the contents of the drive then you have no reason to think he's doing anything wrong.
Re:5th Amendment (Score:3, Insightful)
That is the worst fucking advice. Look at the video linked in my first post to see why.
But basically you can hang yourself inadvertantly with what you say. Even if not at first.
Re:5th Amendment (Score:2, Insightful)
Re:5th Amendment (Score:3, Insightful)
And don't go anywhere the porn images in your browser cache (even banner ads, etc) are illegal.
Our children (16) are another country's young adults, and some tyrannical states think people are never able to consent to having their nude picture taken regardless of what we think.
Re:5th Amendment (Score:2, Insightful)
not mandatory diets. A fat tax. They are still free to be fat asses that cost everyone else in the country in heath care and transportation costs, they just have to pay more.
Re:Everyone, please watch this (Score:4, Insightful)
All that "quota stuff" is counterproductive.
And there are too many cases where police have fabricated stuff, and when they have withheld evidence that can prove the suspect is innocent.
When people have nearly as low an opinion of the police as they do of organized crime syndicates, they really need to clean up their act. Once absolutely nobody talks to you, who is going to tip you off or give you clues?
Re:Everyone, please watch this (Score:2, Insightful)
The basic mission for which the police exist is to prevent crime and disorder.
This is not true. The idea that the police can prevent crime is what is causing many of these problems. The basic role of the police is to prevent vigilante justice after crimes have been committed, which is what would take place without police. If you want to cede all of your rights and free will, then go ahead and allow the police the power to "prevent crime", but that is neither possible nor a good thing for a free society.
wrong both times.
The basic role of the police is to enforce the law.
If you were a cynic you might say the difference between a criminal and the police is we pay the police protect us from the criminals.
I would disagree as police do occasionally have uses beyond this.
Re:Everyone, please watch this (Score:3, Insightful)
The judge IS full of shit. Probably a liberal who believes the government == good and therefore can do no wrong, and therefore we should all submit happily to searches of our cars, homes, or laptops, because the Constitution is just a "guideline" not the law.
Or a conservative, who believes that anyone the government thinks is bad, is bad, we just haven't beaten it out of them yet.
I think you'd be hard pressed these days to find a liberal who still believes that his government is beneficent. Sure the new boss is more liberal than the old boss, but even if he were the second coming of FDR, this thing doesn't exactly turn on a dime.
If you the government official believe there's contraband, obtain a warrant and list the evidence you have acquired to demonstrate probable cause (example: "He was sighted handing money to a child while holding a camaera."). Without that, I will go to jail before I decrypt my laptop. I will not give up my rights, even if you torture me.
On this point, this liberal agrees, at least in principle. As for the torture, though, I'd probably go all Group Captain Mandrake: "Ah, oh, no... well, I don't think they wanted me to talk really. I don't think they wanted me to say anything. It was just their way of having a bit of fun, the swines." So your best bet is probably to keep your .45 in the bathroom drawer.
Re:Everyone, please watch this (Score:3, Insightful)
--* The basic mission for which the police exist is to prevent crime and disorder.--
The prevent crime part is part of the problem. Are you going to arrest someone because they might do something wrong? When there is a crime they are there to bring that person(s) to Justice. The justice system then decides innocence, guilt, punishment.
IF you are going to have a free society, you are going to have crime. Give people freedom of choice and some will choose wrong.
The police should enforce the law, not prevent crime. Of course enforcing the law will prevent some crime but not all.