[TBO]

http://news.cnet.com/8301-31921_3-57...their-laptops/

[Oso]

So what's the worst consequences if you refuse to decrypt? I guess you would have to decide if what you have encrypted is going to get you more or less time in the pokey.


Outdoor Hub mobile, the outdoor information engine

[Booker]

Blackburn can get stuffed!

[CitizenOfDreams]

It must be maddening for the law enforcement to have citizens who can hide something from them.

[Chad Rogers]

It's been so long I no longer remember the password. And, of course, I never wrote it down as a backup.

[holesinpaper]

Encrypt whole drive with Truecrypt, and create a hidden volume.

http://www.makeuseof.com/tag/create-...n-truecrypt-7/

http://www.schneier.com/blog/archive...ypts_deni.html

[TBO]

Originally Posted by CitizenOfDreams

It must be maddening for the law enforcement to have citizens who can hide something from them.

What about Criminals hiding something?

[Oso]

Originally Posted by TheeBadOne

What about Criminals hiding something?

As long as there is a law against it, criminals won't hide anything. Eh?


Outdoor Hub mobile, the outdoor information engine

[Misty02]

I dislike the idea of criminals getting of a technicality, yet I see little difference in a person that uses the 5th amendment to not incriminate themselves by not providing statements that would later be used against them and not providing a password to access information that can later be used against them. My impression of the amendment is the idea of getting the accused to participate and assist in building a case against them.

I don’t like it one bit if it helps a dangerous person avoid justice, but I understand how one should not be expected to help authorities to build a case.

.

[CitizenOfDreams]

Originally Posted by TheeBadOne

What about Criminals hiding something?

If you had the proof of their crime, you wouldn't be so eager to read the data from their laptops. So we should use the word "suspects", not "criminals" at this point.

[Misty02]

Originally Posted by CitizenOfDreams

If you had the proof of their crime, you wouldn't be so eager to read the data from their laptops. So we should use the word "suspects", not "criminals" at this point.

Naaaaa, many are criminals regardless of the amount of evidence that can be gathered (and is admissible) and what is proven in a court of law. There are criminals out there that have evaded justice and continue to harm others, lack of a conviction doesn’t change what they are it just changes what the courts/law can call them.

.

[Sgt127]

Texas Penal Code:

§ 37.09. TAMPERING WITH OR FABRICATING PHYSICAL
EVIDENCE. (a) A person commits an offense if, knowing that an
investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record,
document, or thing with intent to impair its verity, legibility, or
availability as evidence in the investigation or official
proceeding;...
(c) An offense under Subsection (a) or Subsection (d)(1) is
a felony of the third degree.

If he refuses to divulge the password, is he not effectively concealing the evidence?

[CitizenOfDreams]

Originally Posted by Sgt127

If he refuses to divulge the password, is he not effectively concealing the evidence?

If the accused produces documents that incriminate him, isn't it effectively "being a witness against himself"?

[CitizenOfDreams]

Originally Posted by Misty02

Naaaaa, many are criminals regardless of the amount of evidence that can be gathered (and is admissible) and what is proven in a court of law.

Me and you may call them criminals. The law enforcement may not call them criminals or treat them as such. Those are the rules. And, contrary to a popular opinion, those rules were not made to protect the criminals.

[trashcat]

A suspect has a safe, the prosecutors want to see the contents. The suspect says I will not assist you in gathering evidence against me by providing the combination.
The best safe cracker in town fails to open the safe, can he be forced to provide the combination?

[Sam Spade]

Originally Posted by CitizenOfDreams

If the accused produces documents that incriminate him, isn't it effectively "being a witness against himself"?

I don't see how it's any more providing testimony against yourself than opening the door to your house when the search warrant shows up. The evidence is what's inside the house/laptop, not your having the key to the door. And if you're concerned that the jury will know you had the key, then we just won't tell them that.

[Sam Spade]

Originally Posted by trashcat

A suspect has a safe, the prosecutors want to see the contents. The suspect says I will not assist you in gathering evidence against me by providing the combination.
The best safe cracker in town fails to open the safe, can he be forced to provide the combination?

Yes. The 5th Amendment protects you against testimony. It's not a protection when you're subpoenaed to produce records, no matter how bad those records make you look. And in this case, the owner wasn't actually ordered to provide the key, she was ordered to provide the records stored in the safe. The exception is when there's doubt about the ownership of the safe/laptop and the records in it. That's not in play in this case; ownership isn't in question.

Related, from http://volokh.com/2012/01/24/encryti...incrimination/
"If the police have a warrant to search the defendant’s office for documentary evidence of a criminal fraud and find a locked file cabinet, the warrant reaches the contents of that cabinet. Issues about: (1) “expectation of privacy” in a locked cabinet; or (2) “proof” of what the government believes is in the cabinet are now irrelevant issues. Whatever may be inside is reachable by the police because they already satisfied the Fourth Amendment and got a warrant. This is true even if the cabinet contains evidence of a wholly separate crime, like possession of child pornography."

[CitizenOfDreams]

Originally Posted by Sam Spade

And if you're concerned that the jury will know you had the key, then we just won't tell them that.

So, it would be a valid defence if the accused pleaded the Fifth in response to the question "Do you have the encryption key to the files on your laptop?"?

[holesinpaper]

Originally Posted by trashcat

can he be forced to provide the combination?

Not yet. You can just get locked up. Give it another couple years and then they will be water boarding US citizens on US soil.

[Misty02]

Originally Posted by CitizenOfDreams

Me and you may call them criminals. The law enforcement may not call them criminals or treat them as such. Those are the rules. And, contrary to a popular opinion, those rules were not made to protect the criminals.

Sometimes I wonder about that, personal knowledge doesn’t seem to support it.

Nonetheless, I do believe there is little difference in this particular instance, an individual being required to provide a password or to facilitate information that is encrypted would be no different than providing a statement that would incriminate themselves. Either way, it would constitute assisting the prosecution in building a case against them. If discovery of that information is obtained without the active assistance of the person, then that is a different story.

.

[Misty02]

I can follow and understand this. I don’t like it, but you have made it make sense in my mind.

Originally Posted by Sam Spade

I don't see how it's any more providing testimony against yourself than opening the door to your house when the search warrant shows up. The evidence is what's inside the house/laptop, not your having the key to the door. And if you're concerned that the jury will know you had the key, then we just won't tell them that.

Originally Posted by Sam Spade

Yes. The 5th Amendment protects you against testimony. It's not a protection when you're subpoenaed to produce records, no matter how bad those records make you look. And in this case, the owner wasn't actually ordered to provide the key, she was ordered to provide the records stored in the safe. The exception is when there's doubt about the ownership of the safe/laptop and the records in it. That's not in play in this case; ownership isn't in question.

Related, from http://volokh.com/2012/01/24/encryti...incrimination/
"If the police have a warrant to search the defendant’s office for documentary evidence of a criminal fraud and find a locked file cabinet, the warrant reaches the contents of that cabinet. Issues about: (1) “expectation of privacy” in a locked cabinet; or (2) “proof” of what the government believes is in the cabinet are now irrelevant issues. Whatever may be inside is reachable by the police because they already satisfied the Fourth Amendment and got a warrant. This is true even if the cabinet contains evidence of a wholly separate crime, like possession of child pornography."

[Misty02]

Originally Posted by CitizenOfDreams

So, it would be a valid defence if the accused pleaded the Fifth in response to the question "Do you have the encryption key to the files on your laptop?"?

Interesting. That part would require a statement, unless you are told to provide the access required in the warrant and not asked if you have the key? I guess I would expect my lawyer to fight it by any means possible without actually lying and saying I don’t have the key?

.

[steve1988]

Couldn't they just hack it with brute force? I will admit that I am fairly ignorant in this area (and totally ignorant of her encryption program), but a program that systematically generates encryption keys should be able to crack it before the court case is resolved. Also, wouldn't hiring the company that developed the encryption software to break into the computer be more expedient? Please educate me if I am mistaken.

Either way, it is a very interesting question that has been posed to the court, and I must confess that I am very conflicted about it.

[John Rambo]

Originally Posted by TheeBadOne

http://news.cnet.com/8301-31921_3-57...their-laptops/

"Okay, let me decrypt this right he - oh man, I'm so sorry. The hard drive is 0ing itself out. You had better take the battery out and stop it, because the UI is totally locked up! Oh, guys, I'm so sorry, I don't know what could have happened. It just be that damn opensource software I had on it to encrypt the hard drive. Go blame the software manufacturer, who explicitly disclaims responsibility for data loss!"

[John Rambo]

Originally Posted by steve1988

Couldn't they just hack it with brute force? I will admit that I am fairly ignorant in this area (and totally ignorant of her encryption program), but a program that systematically generates encryption keys should be able to crack it before the court case is resolved. Also, wouldn't hiring the company that developed the encryption software to break into the computer be more expedient? Please educate me if I am mistaken.

Either way, it is a very interesting question that has been posed to the court, and I must confess that I am very conflicted about it.

No.

Two things.

1) Good hard drive encryption is very secure.

2) The government is totally inept when it comes to technology.