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back to article Child abuse suspect won't be forced to decrypt hard drive

A federal appeals court has ruled it improper to compel a child pornography suspect to decrypt his hard drive because such an act would violate his Fifth Amendment rights. The ruling (PDF) by the Atlanta-based US 11th Circuit Court of Appeals in the case of an unnamed suspect from Florida (known in court papers as "John Doe") …

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Re: The law is there to protect us.

OK, it was obvious that this case was going to inflame a lot of tensions on both sides of a debate. Let's try to sort through all this mess. One of two things is true:

1) A *potential* kiddie fiddler is free because he didn't hand over his keys. Oh noes.

2) A *potential* entirely innocent person is free because he didn't let the paedofinder general lock him up on trumped up charges. Good good.

At this stage it is impossible to know what happened. Anyone who claims either is true is, while not necessarily lying per se, is being economical with the truth.

The problem here is the juxtaposition of: on the one hand, the idea that criminals should not hide behind the algorithmic equivalent of a locked door; on the other hand, that people should not be forced to open their entire lives to the police on a fishing expedition.

Perhaps there is some middle ground: the self-incrimination defence should still be valid, perhaps unless there is a prima facie case of wrongdoing, accepted by a judge with the standard set of appeals. The prima facie case should not have a "reasonable doubt" level for winning the case, but a "balance of probabilities" level, to compel someone to hand over combinations to safes, passwords, etc. This would offer some compromise between the perfectly reasonable positions of total defence and total offence.

But then what do I know? This is the end of a second bottle of wine. But fuck it, it's a Monday.

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Anonymous Coward

@Khaptain

Go look up the Salam Witch trials, and others of that ilk. Then you might understand why it's important to protect the accused.

Or are you standing there with a torch yelling 'Burn the Pedophile!' ?

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Anonymous Coward

Hollywood

So if Pirate bay had encrypted the videos they would have escaped us law?

Let's face it....they should hand over the code and then let the evidence look after itself!

Otherwise guilty as charged your honour .... as the files could also show their innocence

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Re: Hollywood

No, the law would not have protected them. The big website with flashing signs saying "Free shit" is a bit of a giveaway as to what would probably be found on any encrypted disks and case law has shown that the courts will gladly compel an individual in those circumstances to provide pass phrases or face contempt of court charges.

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Re: Hollywood

"as the files could also show their innocence"

Agggghhhhh...

But you dont have to prove you are innocent.....

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Anonymous Coward

Re: Hollywood

I was going ot make a comment along the lines of "But TPD never hosted any child porn", but, err, they did - they didn't host it per se, but they did operate the torrent trackers and supplied the links to the trackers.

www.theregister.co.uk/2007/09/03/another_pirate_bay_police_case

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Can we extend this thought?

If the 5th amendment protects you from self incrimination, how can you be compelled to give fingerprints or DNA evidence? I don't understand the difference; how one is self incrimination and the other isn't.

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Re: Can we extend this thought?

Simple if you read the article - this is about you being compelled to provide INFORMATION in your head.

DNA or a physical key are objects that you can be expected to posses. Extracting information by threat of indefinite prison for contempt of court is one step away from torture to obtain confessions.

This is not just about alleged kiddy-fiddlers, this is about YOU in 10 years time when some baseless accusation is made against you in respect to a computer you once had, that is encrypted, and you are then in contempt of court for not providing that knowledge what you don't actually posses.

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Anonymous Coward

Re: Can we extend this thought?

Because DNA and fingerprints are part of who you are in a physical sense. Like how you look. The police wouldn't allow you to cover your face in a line up.

In the U.S., the police can't open you up to see what you swallowed, but they can wait until it passes through you or, if you're life is danger, take it from the contents of a pump.

Confessing to how or why you did something, while appreciated by the police, is not something that you have to do. There may be reasons for it, so you don't end up on a short list even though you didn't commit a crime (i.e. told the person you hated their guts an hour before they happened to be killed). A reason for not decrypting a drive may not be the child porn the police are looking for, but the pirated movies or films of you doing stuff you want no one to know about. I personally wouldn't trust the police with the digital photos of ex's I have, that's why that stuff is all encrypted. Nothing illegal, but it's not their concern and I don't want something to get out because I'm the one who told them no one else would ever see the pictures. I don't want my word to mean nothing.

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Someone gets it!

Read Paul Crawfords post - he gets it.

Whilst both a combination and a key both serve the same purpose (they get you into the vault) they are very different things in law. One is a phyiscal object, the other is something you know. Compelling a person to provide a physcal object is fine - the object itself is incontravertible.

Compelling a person to provide something they know is another matter entirely. That information is not necessarily incontraventible (an enc key may be, but what about "Yes your honour, I was alone outside her house that night like the big copper says"?) If you allow compulsion to provide enctyption keys where do we draw the line? What else can we compell ppl to tell us? And how do we do it? Threat of prison? A rubber hose filled with sand? You can see how slippery that slope is, and the courts won't go there - they do not want to be party to the possibility of torture etc.

The decision was the right one. It may not be the perfect one, but it's the right one.

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Childcatcher

Double standards

Just had a little revelation; when I first heard of the case, my opinion was completely "She should not be forced to decrypt it, privacy issues and so on", and just now I realised it involved possible child abuse and the idea did a complete 180 in my head. I hope I'm not becoming a Daily Fail reader... (Think of the children! :P)

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Re: Double standards

Lucky that the first case the police tried was child porn then isn't it?

They didn't try and get a journalist to decrypt details of a leak, or a banker to decrypt their tax records or a Yamikotai to decrypt details of their pirate MP3s

And of course if they had got a favourable ruling in the child porn case - they would have made it very lcear that they weren't extending the precedence to anyone else.

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Re: Double standards

Relax. Your second reaction merely proves that you are a normal human being. Your first reaction proves that you are, by instinct, smart enough to guard against the dangers inherent in this.

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Re: Re: Double standards

Um it would work that way. It would set precedence for all cases involving encryption .

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FAIL

America does not understand the concept of rights

Why do they always side with the accused? My rights to say this, or not do this. What about the rights of the victims? It's US bullshit as usual. Sort your education system out.

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Re: America does not understand the concept of rights

The British system is much fairer - innocent until proven Irish

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Re: Why do they always side with the accused?

Because the constitution was written by people who know what it feels like to have the resources of a powerful but fallible state directed against them.

Perhaps if you knew a bit more history you'd understand this point. Sort your education out.

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Re: Re: America does not understand the concept of rights

Lol good one. Still pretty much everywhere in the world its innocent until broke.

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Unhappy

@yet another

AAnd here I have been saying for years that i want to move to England from the states....

Guess I'm fucked then if I do

<------points at last name

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Anonymous Coward

Re: Re: Why do they always side with the accused?

You mean the guys who decided that all men were created free but happily ignored slavery , and came up with the three fifths compromise. And also the guys who set up the committees for observation and safety. Pffft - as always it was a case or replacing one powerful state with another.

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Re: Re: Re: Why do they always side with the accused?

The three fifths compromise was made up to prevent the slaver states from using their large slave populations to gain more power in congress. Read your damn history.

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Anonymous Coward

@Graham Dawson

I've read my "damn history" - "We hold these truths to be self-evident, that all men are created equal." - as written by the slave owning Thomas Jefferson. Took them a while and a lot of blood to get that sorted out.

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Re: @Graham Dawson

Must be great having to live in a black and white world where you never have to make any compromises to survive.

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Anonymous Coward

Meanwhile, back in Blighty...

He wouldn't be 'John Doe', but named along with address, tried and convicted by our estimable media; all before being compelled to provide the keys under our RIPA legislation.

For those who believe justice is served by forcing someone to incriminate themselves, wait until you're the one getting the 6am knock at the door

http://www.unitedagainstinjustice.org.uk/bill_thompson%202004.htm

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Trollface

Re: Meanwhile, back in Blighty...

Not to mention that, "You do not have to say anything, but your defence may be harmed if you fail to mention something when questioned that you later rely on in court."

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FAIL

What a stupid idea, of course he should be forced to decrypt.

I hope the jury is made aware that he has an encrypt harddisc that he refuses to decrypt.

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FAIL

what

Well since water boarding is not torture that is what should be used to encourage someone to cooperate eh? Another nothing to hide nothing to fear sheep.

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Facepalm

Why?

And what would that prove exactly?

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(sigh)

If the authorities had any information other than the fact he has encrypted hard drives then he would be compelled to assist in decryption. They don't, that's the point.

Due process such as this is their to protect people from the state. People are presumed to be innocent and State's are presumed to be malicious and oppressive. Which they naturally are, their very purpose is to tell you what you can't do. The Bill of Rights provides a set of ground rules for the state's interference in an individuals life. Without it, you end up with Slavery, Genocide and mass Oppression. The fact that now and again it inconveniences the trial of someone who may or may not be a peadophile just goes to show how effective it is.

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Re: Why?

That he obviously has kiddy porn on his computer. Make him an offer, say the police will ignore anything illegal that they find execpt kiddy porn. If he still refuses it is obvious why, the jury should be made clear that the police wanted to look at his harddisc, and he refused. If he is innocent, he has nothing to hide. People get checked for all kinds of things by police when they match a subjects description, at airports for body scanning... can people refuse those kind of things no... and there is no reason to.

The register is a nerd hangout, nerds without children or any chance of getting children, but anyone with children would not be writing the kind of comments that have been written about this article.

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FAIL

Re: what

This is not torture, he is simply being asked to decrypt his hard drive. What's wrong? Worried in case your drive ever needs to be searched... have a little bit of kiddy porn?

Yet another childless computer nerd who thinks it's ok for children to be kindnapped, rapped and killed.

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(sigh)

well if you ever have kids, and one of them gets abused and the only way to prosecute the fucker is for the police to find evidence on his hard drive, I'm sure your being glad that he wasn't forced to decrypt his data, or that the jury were not informed that he refused to do so.

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"If the authorities had any information other than the fact he has encrypted hard drives then he would be compelled to assist in decryption. They don't, that's the point."

That would be a valid line of reasoning. It's not what happened in this case, though. The judge has said the defendant can stand on the Fifth, irrespective of the merits of the case in question. Even if the police had five reliable witnesses testifying they saw child porn on his computer, he could still refuse to assist.

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@ rtli-

No actually, that IS pretty much what happened. Well, it' a bit more complicated. But a key part of the ruling was that unlike previous cases, the government does not have any particular thing they are looking for, only a general category (child porn). Presumably if they had evidence that he had downloaded a specific pornographic video, or as you said, testimony that he was seen with it (as in the Boucher case) they might well have ruled the other way.

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Trollface

Re: Re: what

You have it in for rappers now?

Troll.

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Re: @ rtli-

I'm all for preventing fishing expeditions: I can see how they are clearly open to abuse. I just don't think it has any connection with protection against self-incrimination, and I don't see why it would even be mentioned in the judge's ruling, let alone set any kind of precedent.

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If my child ever gets abused I won't count on the prosecution to handle justice.

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FAIL

_sigh_ Totally missing the point of the amendment

The amendment is there to prevent anyone being forced to provide false testimony. However, a password is not evidence. You can't be tortured into giving a password that makes child porn magically appear on your hard disk. It either decrypts the data or it doesn't. It's a totally ignorant appeal to the amendment.

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Re: _sigh_ Totally missing the point of the amendment

While that is certainly one good reason for the amendment, it is not the only one. I personally think it's bad to torture people into giving truthful confessions as well. And in this case, although you are correct that he can't supply a password that creates child pornography, there does exist the possibility that he has forgotten the password (or never had it) and thus would be "tortured" (imprisoned) indefinitely. I'd say that's another good reason for the protection to exist.

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Re: Re: _sigh_ Totally missing the point of the amendment

"I personally think it's bad to torture people into giving truthful confessions as well."

Indeed -- and the Fifth prevents that, also. In the case of a password, though, this interpretation of the Fifth provides no protection against a corrupt police force. If they torture the guy behind closed doors and he eventually caves and gives the password, they can simply claim they found it on a piece of paper in his house, or recovered it from his computer's RAM, or something equally suspect but not damning. There will be no visible violation of the Fifth. On the other hand, in the case of a suspect testifying against himself, there are independent witnesses (jury, judge) to him doing so.

"There does exist the possibility that he has forgotten the password (or never had it) and thus would be "tortured" (imprisoned) indefinitely"

In this case, you would need an entirely different set of laws to prevent indefinite imprisonment without trial. The Fifth wouldn't help you.

Since there is no torture-preventing benefit to appealing to the Fifth in this case, and no way false evidence could be coerced, it seems madness to me to claim it applies.

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Re: Re: Re: _sigh_ etc.

It may not protect completely against a corrupt police force, but it does protect against an honest but overzealous one. Moreover I don't see how that would work out any differently if you substituted signed confessions (true or otherwise) for passwords.

On the last point, you've lost me again. If this ruling stands he won't be forced to hand over the password, full stop. How can you say that does not help him in the event that he does not have it?

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Facepalm

Re: Meanwhile, back in Blighty...

"For those who believe justice is served by forcing someone to incriminate themselves, wait until you're the one getting the 6am knock at the door."

Seriously? You think giving a password to a hard disk is forcing you to incriminate yourself? If nothing else, if there's evidence you've broken the law on there, your hard disk would be incriminating you, not your testimony.

I swear, half of these posts sound like they were posted by children afraid of their parents finding their porn stash, not mature adults with intelligent views on society. Oh, wait...

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Anonymous Coward

Re: Re: Meanwhile, back in Blighty...

Give me six lines written by the most honorable of men, and I will find an excuse in them to hang him.

-Cardinal Richelieu

Think about that while you look in all your personal files for something someone might put you in jail for.

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Re: Re: Re: Meanwhile, back in Blighty...

"Think about that while you look in all your personal files for something someone might put you in jail for."

I think the law should take that into account whether or not I manage to flummox police with my 1337 encryption skills.

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Re: Re: Re: Re: Meanwhile, back in Blighty...

@rtli-

Remember than in Britain it's now a criminal offence *not* to give up your password if the Authorities demand it.

Naturally this law was introduce simply to protect us from terrorism. It's not as if anyone else would ever be convicted under it, is it...

[quote]The first person convicted under this law was a vulnerable eccentric who refused to decrypt the files on his laptop when the Met's terror squad told him to. He was convicted and jailed despite prosecutors accepting that he was not involved in terrorism at all.[/quote]

http://www.theregister.co.uk/2009/11/25/jfl_ripa_opinion/

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Re: Re: Re: Re: Re: Meanwhile, back in Blighty...

"It's now a criminal offence *not* to give up your password if the Authorities demand it."

I don't see a problem with that. The police would already require a warrant. Allowing people to obstruct them as they attempt to uncover evidence serves no principle of justice, nor does it serve as a check against a corrupt police force. Do I remember correctly that obstructing an officer in the pursuit of his duty was already an offence in the physical world? What issue with extending that to the digital?

Of course, if they don't -know- the password, they can't very well give it out, but then that would be a pretty compelling point for the defence should such a case reach trial, no?

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Anonymous Coward

@rtli

"obstructing an officer in the pursuit of his duty was already an offence"

So why not throw people in prison for not telling you where a dead body or murder weapon is. As by not giving the police this info, you are obstructing them gathering evidence, by your logic.

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Re: @rtli

"So why not throw people in prison for not telling you where a dead body or murder weapon is. As by not giving the police this info, you are obstructing them gathering evidence, by your logic."

I refer you to the second paragraph of my post, where I already addressed this exact point in the sure knowledge someone would strawman my argument. It was also pretty predictable that selfsame nit would never manage to read a whole *two* paragraphs before responding, and would hence miss that completely. Congratulations. You have been stupid on the Internet.

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Vic
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Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...

> The police would already require a warrant.

This is not true.

Section 49 of RIPA 2000 allows "any person with the appropriate permission under Schedule 2" to issue a disclosure requirement notice. Note that the people descried under Schedule 2 are not all police or judiciary.

There is very little control over who can issue S49 notices :-(

Vic.

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Anonymous Coward

Re: Re: @rtli

"Congratulations. You have been stupid on the Internet."

Did not see anything in the post I quoted, that said anything to counter the point I made. Which is that the police power to not have their evidence gathering obstructed, does not supersede a suspects right not to incriminate themselves. That is what the comment I quoted was saying. I will let others judge who is the nit here.....

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