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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."
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US District Ct. Says Defendant Must Provide Decrypted Data

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

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

  • Re:So basically... (Score:4, Informative)

    by murdocj ( 543661 ) on Thursday February 26, 2009 @06:52PM (#27005221)

    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.

  • The Ammendment (Score:5, Informative)

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

    I don't know anything about the 5th Amendment

    Here's the full text:

    Amendment V
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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

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

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

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

  • RTFO (Score:5, Informative)

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

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

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

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

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

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

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

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

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

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

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

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

  • Re:5th Amendment (Score:3, Informative)

    by NotBornYesterday ( 1093817 ) * on Thursday February 26, 2009 @07:04PM (#27005361) Journal

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

    "Curtis" is the border agent.

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

  • Re:5th Amendment (Score:3, Informative)

    by Ethanol-fueled ( 1125189 ) * on Thursday February 26, 2009 @07:13PM (#27005497) Homepage Journal

    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.

    Remember, folks, in America law enforcement are allowed to lie to you.[pdf] []

    If law enforcement ask questions which make you uncomfortable, ASK FOR A LAWYER and SAY NOTHING ELSE. They will try to mess with your head and they will bring in fake stacks of "evidence" papers and do whatever else it takes. DO NOT LISTEN TO THEM and do not sign anything.

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

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

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

    The 5th is not an on-and-off right. You can't get on the stand at your own trial to testify in your own defense, and then start invoking the 5th when the prosecutor asks questions you don't like. The same here, he gave them the computer, they saw the data. He can't say, after that, "Sorry, I'll take the 5th, you can't see the computer again."
  • Re:The Ammendment (Score:3, Informative)

    by mangu ( 126918 ) on Thursday February 26, 2009 @07:37PM (#27005799)

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

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

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

  • Re:Makes no sense (Score:2, Informative)

    by muridae ( 966931 ) on Thursday February 26, 2009 @07:40PM (#27005835)
    No, it doesn't. If they found something the first time, went and testified to a judge, under oath, that you had something illegal and they got a subpoena to search your house then you would have to let them.
    He showed the cop something that looked like CP, the cop got a subpoena to search the computer. The guy doesn't have the right to say 'screw the subpoena'. Due Process clause, the law went through the proper channels to get access to the computer, now he had to comply.
  • Re:5th Amendment (Score:2, Informative)

    by Poisonous Drool ( 526798 ) on Thursday February 26, 2009 @07:46PM (#27005921)
    Never Talk to Police []
  • Re:5th Amendment (Score:5, Informative)

    by geniusj ( 140174 ) on Thursday February 26, 2009 @08:01PM (#27006113) Homepage

    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.

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

    by Galphanore ( 947579 ) <Galphanore AT gmail DOT com> on Thursday February 26, 2009 @08:16PM (#27006293)
    Watch this : [] 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.
  • by amcdiarmid ( 856796 ) <amcdiarm&gmail,com> on Thursday February 26, 2009 @08:28PM (#27006415) Journal

    Actually, I have been arrested for being that obnoxious at the airport...

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

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

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

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

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

  • by CodeBuster ( 516420 ) on Thursday February 26, 2009 @08:53PM (#27006739)
    IANAL, but can't they technically keep you in detention indefinitely on an obstruction charge (i.e. you get to sit in jail until you relent, however long that takes) since it effectively stalls or postpones an open case?
  • Re:then what proof? (Score:3, Informative)

    by rts008 ( 812749 ) on Thursday February 26, 2009 @08:57PM (#27006775) Journal

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

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

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

  • by brainfsck ( 1078697 ) on Thursday February 26, 2009 @09:05PM (#27006879)
    No, they can just hold him in prison until he complies with the order:

    "once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required."

    (from [])
  • by andy_t_roo ( 912592 ) on Thursday February 26, 2009 @09:18PM (#27007025)

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

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

    by jonwil ( 467024 ) on Thursday February 26, 2009 @09:40PM (#27007243)

    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)

  • Re:5th Amendment (Score:3, Informative)

    by hairyfeet ( 841228 ) <bassbeast1968@gm[ ].com ['ail' in gap]> on Thursday February 26, 2009 @10:04PM (#27007407) Journal

    You never been to AR, have you boy? You ever see the movie "Gator"? That might as well have been a documentary around here. Here the small towns are living off your wallet. The more they can fuck with you the more cash they get. And don't be driving while Black with a nice car or be a white guy and a black guy riding in the same vehicle because you are just asking for it. As someone who has gotten his skull thumped because he rode with a black guy I know of which I speak.

    So while I am glad things are different where you live, here it is strictly an "us VS them" mentality and with damned good reason. They will gladly crack your fucking skull open just for looking at them funny down here. Crimes? not really necessary for a good skull thumpin. And here the cops and the judges are usually kinfolk so good luck trying to press charges.

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

    by Quothz ( 683368 ) on Thursday February 26, 2009 @10:09PM (#27007445) Journal

    Seriously, would they arrest me for downloading child porn while I'm in, say, Vietnam? If I'm on a US military base, HELL YES. If I'm on vacation, and don't bring the material back into the country? Uh.

    Yes. Yes, they would. []

  • Re:5th Amendment (Score:2, Informative)

    by PacMan ( 15605 ) <> on Thursday February 26, 2009 @10:44PM (#27007671) Homepage
    That's not how Public Key encryption generally works.

    Encrypting something via Public Key system is slow, so what is generally done is a random key (128bit/256bit/1024bit/whatever) is generated, and some other system like IDEA/Blowfish/etc is used to encrypt the file with this random key. Then the random key itself is encrypted using the Public Key, and included in the output file (or this may be done first).

    Encrypting the same file twice with PGP/GPG will result in different encrypted files. Here is what I got when I encrypted the same file twice:

    $ ls -l whycopyrightdoc.ogg*
    -rw-r--r-- 1 xxxx users 444876583 2008-12-09 16:27 whycopyrightdoc.ogg
    -rw-r--r-- 1 xxxx users 442961134 2009-02-27 13:38 whycopyrightdoc.ogg.gpg
    -rw-r--r-- 1 xxxx users 442961133 2009-02-27 13:33 whycopyrightdoc.ogg.gpg.1

    $ cksum whycopyrightdoc.ogg*
    2090966688 444876583 whycopyrightdoc.ogg
    909254713 442961134 whycopyrightdoc.ogg.gpg
    121574791 442961133 whycopyrightdoc.ogg.gpg.1

  • Re:Wow... (Score:4, Informative)

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

    No what the case was:

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

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

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


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

    No, I plead the fifth.

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

  • Re:5th Amendment (Score:2, Informative)

    by Anonymous Coward on Thursday February 26, 2009 @11:51PM (#27008063)

    That is EXACTLY what the lawyers tell you to do.
    DONT TALK TO COPS. Cooperate, but dont say anything.

    Part 1:

    Part 2:

  • Re:5th Amendment (Score:3, Informative)

    by Jafafa Hots ( 580169 ) on Thursday February 26, 2009 @11:56PM (#27008075) Homepage Journal

    What I learned is, talk to the cops, but be smarter than them. And one way to be smarter than them is to convince them that you're dumber than them.

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

    by LurkerXXX ( 667952 ) on Friday February 27, 2009 @01:37AM (#27008563)

    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: []
    Part 2: []

  • Re:5th Amendment (Score:3, Informative)

    by LurkerXXX ( 667952 ) on Friday February 27, 2009 @01:39AM (#27008581)

    That was in reguard to the 'busted' video, which seemed geared towards folks who were guilty of something and trying to avoid getting busted.

    These videos show how you shouldn't talk to them even if you are innocent. It will do you zero good and can only hurt you.

  • Re:5th Amendment (Score:1, Informative)

    by Anonymous Coward on Friday February 27, 2009 @01:44AM (#27008621)

    You going to tell the class where you got that quote?
    It's Ayn Rand.

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

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

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

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

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

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

  • by bickerdyke ( 670000 ) on Friday February 27, 2009 @04:24AM (#27009329)

    Isnt that "no, do I STILL need one?"

Mathemeticians stand on each other's shoulders while computer scientists stand on each other's toes. -- Richard Hamming