back to article 'Sorry, I've forgotten my decryption password' is contempt of court, pal – US appeal judges

The US Third Circuit Court of Appeals today upheld a lower court ruling of contempt against an ex-cop who claimed he couldn't remember the password to decrypt his computer's hard drives. In so doing, the appeals court in Philadelphia avoided addressing a lower court's rejection of the defendant's argument that being forced to …

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Hashes of Encrypted files?

If they think they know what is on the other side of the encryption, then they already have the password. Last I heard, the hash before and after any encryption ought to be different.

Of course, we could ask which hash they were using, and argue that some hashes are know to have collisions (SHA-1).

All in all not too good for us normal folk, as I disagree with the ruling, but from the looks of it the guy is a real scumbag if the government is right.

We shall see....

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Anonymous Coward

Re: Hashes of Encrypted files?

I don't think it was hashes of encrypted files, they were able to decrypt the mac pro, but not the external HDs. Somehow from decrypting the Mac they were able to determine that he had downloaded images that match that of known child porn images (the hash matches). These hashes were somehow able to be generated without the images actually still being on the computer as the images were not on the computer?

I do not see how there is a difference between the government having a sense of what is on the drive and not actually knowing, as they can compel someone to reveal a password if it will not provide any additional evidence. If they could prove that he has downloaded these images they wouldn't require the password as they have the evidence they need. If they dont have the evidence then they need the contents of the drives but cant request it as the drives would then be providing evidence. If the government only needs a 'sense' of what is on something without actual proof then they can have a 'sense' of some wrong doing on all encrypted devices and demand them be unlocked or jail time.

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Anonymous Coward

Re: so Desperation

Unfortunately, if we want to keep our rights, we have to allow them to be extended to scumbags too. Once the precedent is set that scumbags don't get a right to privacy, none of us do.

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Anonymous Coward

Re: so Desperation

Unfortunately, if we want to keep our rights, we have to allow them to be extended to scumbags too. Once the precedent is set that scumbags don't get a right to privacy, none of us do.

The difference is that when such a sumbag's ext HDD is decrypted, they seemingly stand a good chance of being jailed. Whilst an honest ordinary upstanding member of society such as yourself wouldn't.

If one thinks one is living in a police state, count how many times you or your friends / family have been arbitrarily stopped, fined, forced to pay a bribe, wrongfully imprisoned, beaten up, disappeared, etc. If the sum is approximately zero, then you're not living in a police state. If the answer is zero, you're probably in Switzerland or somewhere Scandinavian. In Switzerland it's not the police you have to worry about, it's the neighbours. They'll quite happily dib you in for taking a bath after 10pm, or washing your own car, or mowing your lawn on a Sunday, etc...

If you want to try the full-on police state experience, try living in Zimbabwe and shout "Mugabee is a thug" on a street corner, or something similar in various other parts of the world not equipped with a functioning democracy. Once you have that experience, you're better placed to judge one's own society. Your mileage may vary.

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Flame

Re: so Desperation

Nothing to hide, nothing to fear:-

http://www.theregister.co.uk/2013/07/09/post_office_admits_false_accusations_after_computer_system_cockup/

http://www.independent.co.uk/news/world/americas/video-shows-us-police-officer-taser-and-pepper-spray-african-american-man-who-had-suffered-a-stroke-10274072.html

https://www.youtube.com/watch?v=3kEpZWGgJks

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Re: so Desperation

Eloquently put

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Re: so Desperation

"The difference is that when such a sumbag's ext HDD is decrypted, they seemingly stand a good chance of being jailed. Whilst an honest ordinary upstanding member of society such as yourself wouldn't."

This assumes that governments are steady-state, which is often not the case. Today's fine upstanding citizen can quite easily become tomorrow's undesirable as the winds of change flow through the corridors of state.

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Re: so Desperation

"Unfortunately, if we want to keep our rights, we have to allow them to be extended to scumbags too. Once the precedent is set that scumbags don't get a right to privacy, none of us do." - Exactly correct. Also, paraphrasing Ben Franklin: those who want privacy and the ability snoop will not have privacy.

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Re: so Desperation

@AC

"The difference is that when such a sumbag's ext HDD is decrypted, they seemingly stand a good chance of being jailed. Whilst an honest ordinary upstanding member of society such as yourself wouldn't."

Irrelevant.

The defendant was being asked to testify against himself. I appreciate that the line between having to provide a key to a safe and having to provide a password to a hard drive appears fine but that is only when you approach it from the point of view of use, rather than source and format.

Ask yourself this - what if the police had access to a machine capable of reading information directly from someone's mind? It's a situation I've ranted on before but here it is particularly relevant. If such a device were to exist, should the police be able to employ it to force information from a defendant?

If you accept that a court should be able to force a defendant to turn over information in their mind, then it's hard to argue, logically, that a mind-reading device couldn't be used. After all, if the police are executing a legal warrant to search someone's house, no amount of refusal to let the police enter will stop them - they are allowed to use necessary force to execute that warrant.

Still, you might say that this is all okay with you because it would only be used on 'scumbags'. But who decides who is a 'scumbag' and who is an 'honest, ordinary, upstanding member of society'?

Sometimes it's hard to tell who gets to make that decision but, spoiler alert: it's not you. And it's certainly not me.

But let's say that it is decided that in certain cases, involving certain (alleged) crimes, the stakes are high enough to force people to reveal information contained in their mind that the authorities will then use as evidence against them.

Why not just force them to testify against themselves? After all, you've already admitted that it's okay to compel people to reveal information in their heads - information which is being sought for the express purpose of convicting that person.

What you then have is, effectively, a test on when the Fifth Amendment should and should not apply and who it should and should not apply to. Perhaps, even then, you are still defiantly sticking to your guns. But think of what that actually means . . .

It means that the Constitution - a document that expressly limits how the government may act and what laws it may make - can be ignored when the government wants.

In other words, it means that the government can make laws that restrict the constitution.

And make no mistake - the government would love to do this and we see it with First Amendment cases not infrequently. In such cases, the government makes a law that bans some type of behaviour - for example (and controversially) burning the flag. The courts then slap that down as unconstitutional.

In these cases, the government's line is not that the action isn't free expression of ideas, but that this particular idea should be considered especially problematic. The flaw in the government's arguments in these cases is that the First Amendment already contains exceptions and the proposed/enacted laws do not fall into those (narrow) spaces. Instead, the laws, effectively, try to add new exceptions to the constitution.

And that's just not how it works - the government of (e.g.) Texas, can't decided that the Constitution doesn't apply when it says it shouldn't.

This is the whole point of the Constitution - to set aside some laws and rights and protections and restrictions that cannot be easily overruled and ignored based on current political ideology or populist sentiment.

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Re: so Desperation

"Eloquently put"

What was?

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Re: so Desperation

As an side-note, the reason the laws and cases against flag burning are particularly relevant is that burning a flag is not harmful to anyone. Oh, you may hate it and it may make you feel angry but it doesn't harm you.

The flags in question are private property that have been purchased by the individual in question and, as such, destruction of which represents no damage of public property. It is also just a flag - pieces of died and sewn cotton* - and so has no worth except that of the ideas it stands for. Ideas. Not a person, not a building - just some ideas. No one's child is being kidnapped and abused - no one is being murdered or beaten. No one's house is being broken into or car stolen.

But yet this - this expression (and it is accepted as such by the government) that harms no one and constitutes no loss or damage of public property - is enough to prompt governments to try to circumvent the Constitution.

Oh, you had better believe that the government would like to be able to do that and that, if it was able to, it wouldn't stop at extreme cases. It wouldn't be just to 'protect the children'.

* - Burning a flag may be free expression of an idea but setting polyester on fire is plain stupid.

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Anonymous Coward

Re: so Desperation

This assumes that governments are steady-state, which is often not the case. Today's fine upstanding citizen can quite easily become tomorrow's undesirable as the winds of change flow through the corridors of state.

What's the state of the government got to do with it? It's the judiciary who run the legal system and put people in jail. Though paid and in part appointed by the government, the judiciary independent of government.

Just at the moment one can see the federal judiciary demonstrating their independence from government; they keep over turning Trump's executive orders.

You want to try what it's like when government controls the judiciary, go and live in China, places like that, see how many rights you have there!

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Childcatcher

"the looks of it the guy is a real scumbag if the government is right."

Child pornography cases always guarantee public sympathy for law enforcement.

Which is why it's always best for the government to use them if law is likely to be contentious.

Note BTW this is the case in a United States court, just in case anyone thought this was the position in every other country in the world.

Since we are talking the US Constitution 5th Amendment IE the right to not incriminate yourself, I'd guess the question is what would be the story if (in earlier days) he was a Mafia book keeper and kept the books in his own personal code ?

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Anonymous Coward

Re: so Desperation

Still, you might say that this is all okay with you because it would only be used on 'scumbags'. But who decides who is a 'scumbag' and who is an 'honest, ordinary, upstanding member of society'?

This is America, the decision is made by the judiciary and where relevant a jury. That's what they're for, it's their sworn duty. The police and prosecutors may claim that someone is a scumbag but they don't get to decide or not whether that's true.

Even today, even with a fairly nutty President on the throne, someone accused by the unholy trinity of the FBI, police, and all the State prosecutors of stashing illegal material on an encrypted HDD will have their name cleared by the judiciary simply by unlocking that drive and allowing the judiciary /jury to see that nothing illegal is held within. That's all it takes.

That's a strong protection of people's liberty. It probably results in a successful claim of wrongful arrest too.

And if the prosecutors have been making a habit of bringing such cases that they keep losing (accompanied by venomous condemnation from the judge), a few successful claims for wrongful arrest, mendacious prosecution, etc, would force them to alter their behaviour. There are, eventually, personal consequences for prosecutors and police who bring dumb unfounded cases.

That's why such things don't happen very often.

That's not what seems to be going on in this particular case. Based on the reports, it seems that there is a strong likelihood that Doe really is a complete and utter scumbag, an opinion shared by the Judge.

In other words, it means that the government can make laws that restrict the constitution.

I'd have thought that especially in America with its vaunted constitutional separation of powers that people would be more aware of the role of the legislature, the body that makes laws, and the role of government, a body that does not make laws.

Ask yourself this - what if the police had access to a machine capable of reading information directly from someone's mind? It's a situation I've ranted on before but here it is particularly relevant.

You get angry about something that doesn't exist? Oh deary me.

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I don't recall

So they're basically saying "I don't recall" equals contempt of court? Interesting, that. I seem to remember quite a few high profile cases that hinged on that particular defense!

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Anonymous Coward

Re: so Desperation

"The difference is that when such a sumbag's ext HDD is decrypted, they seemingly stand a good chance of being jailed. Whilst an honest ordinary upstanding member of society such as yourself wouldn't."

Irrelevant difference: What you lose in both cases, is the privilege to have the encryption in the first place, i.e. privacy. Jail time for not revealing password to any authority who bothers to ask for it, literally means no right to privacy.

And that is the primary target here, one people more in prison is totally irrelevant in this case: The attack is against privacy. Everyone's privacy.

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Anonymous Coward

Re: "I don't recall" equals contempt of court?

I sometimes make exceeding cryptic notes in weird locations to remind me of a password, in which case a request to decrypt would be "Um, hang on, I'm sure I had a note somewhere ... err, bloody hell, ummmmmm." And that'd be when I was being cooperative. Even if I found the note it then might well be "Argh, what the hell is that supposed to mean? Oh god...". Somewhere I've got an encrypted file full of old backups that I've been meaning to try to write a script to brute force it. Needless to say, /that/ password was very easy to remember at the time.

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Stop

@AC:Re: so Desperation

AC,

out of interest, how many friends do you have that are black and live in a major metropolis...?

Please post the publicly visible IP address of the webcam in your bedroom, because of course:

YOU HAVE NOTHING TO HIDE, do you now?

On a related note, why isn't your handle visible too???

Be careful what you wish for my friend...

Regards,

Jay

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Anonymous Coward

Re: so Desperation

" There are, eventually, personal consequences for prosecutors and police who bring dumb unfounded cases."

Ehheh. You really believe so?

Oh deary me.

Somehow we haven't ever seen that happening. Have you?

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Re: Hashes of Encrypted files?

I think in this case it's more like getting a warrant to search. They have enough to show the judge that they should be given access but not enough to convict. In the case of houses they could just break down the door or drill out the locks but with encryption they have to rely on the person charged to open it for them.

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Re: so Desperation

They already have machine that can read peoples thoughts - a lie detector - which people have been forced to use for years. It just happens that the detector is absolutely useless.

What would be your solution be in this case that balances the right of the individual against the right of the public? Whose rights should take precedence here - a person who is indirectly responsible for harm against children or the children?

To make this more grey and less emotive we can have a different scenario. Someone films themselves stealing something which they then toss/destroy so there is no evidence. The film is encrypted but the police have a fairly good idea what the film shows because the person mentioned they did something like it to their friends. Whose rights should take precedence - the person who stole or the person who was stolen from?

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Re: so Desperation

"

What's the state of the government got to do with it? It's the judiciary who run the legal system and put people in jail.

"

Because it is the government that creates the laws that the judiciary have to act upon. Theoretically the government cannot make a law that runs counter to the constitution in the US or is contrary to the HRA in the UK, but in practice there are ways around those inconveniences, you just have to engineer a situation where the public perceives that the constitution of HRA is standing in the way of "justice" and you can get that part of the constitution or HRA revoked so as to clear the way for what you really want to do. Much of the general public in the UK have already been brainwashed into thinking that the HRA is a bad thing, and that the HOL are over-privileged unelected parasites, so perhaps we will soon get rid of both those things. After which the government will be able to pass pretty much any law it likes with impunity. And judges will be forced to uphold such laws.

If the government decided to put all Muslims into concentrations camps for example, and enacted a law that made it illegal to withhold the whereabouts of Muslims, then anyone who refused would be a criminal.

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Re: so Desperation

"

their name cleared by the judiciary simply by unlocking that drive and allowing the judiciary /jury to see that nothing illegal is held within. That's all it takes.

"

So what if the police were to find an old USB memory stick that you used to transport some confidential files 5 years ago, and demanded that you decrypt it, but you could not remember the password you used? You'd presumably be quite happy to go to jail for life.

And what if you did in fact have some Snowden whistleblowing type information on an encrypted drive that might be seen as treasonous? Does that make you a scumbag that deserves all he gets? Or you learn that your 12 year old son took some explicit photos of his girlfriend - would you be quite happy to help the police convict him and put him on the sex offenders' register so ruining his chance of a reasonable life?

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Pint

Re: so Desperation

I am really sorry but limitations in the register upvoting system only allowed me to give you +1 vote. Have a virtual beer too. I'm obviously UK as well so the beer will be rather good.

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Re: so Desperation

@Meerkatjie

"What would be your solution be in this case that balances the right of the individual against the right of the public?"

This is the question that is used by everyone seeking to circumvent and weaken protections provided by the constitution. To be clear, I am not suggesting that is you position - I am simply pointing out that this question of 'balance' is the wedge that gets used.

The problem is that the protection of, say, the Fifth Amendment is a protection for the public against the government. It is an acknowledgment that the government has more power than the individuals it accuses of crimes.

You can talk about the individual vs the public but the public is made up of individuals, each of whom are afforded the same protection. Given that this is, as stated, a protection for the public against the government, you can't separate the rights of on person from the rights of all people.

When you talk about the rights of the individual vs the rights of the public, what you are really asking is whether the government should be allowed to strip the rights from some individual when they believe - or profess - that it benefits 'the public'. Once that it done, then NONE of the public have that right anymore because any single person may be stripped of it.

The Fifth Amendment is for the good of the public, it just sometimes doesn't feel that way. Just as the First Amendment is for the good of the public and yet it allows behaviour that many find objectionable.

Some protections are all-or-nothing because as soon as you allow wriggle room, the government tends to have the advantage and can perform all manner of contortions to justify what they want.

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Re: so Desperation

Whose rights should take precedence here - a person who is indirectly responsible for harm against children or the children?

Your following comment was interesting, but I'd still side with the idea of protecting the individual's privacy - I've known people who when asked by police, out of fear/autism-related-stuff/general nastiness they'll often say they're aware of someone having done or said something. And I know full well the pigs will twist everything they can and even make things up if they're wanting a pay bonusconviction enough. So often they've done "we know you did it, your mate in the other room is confessing to everything and will testify against you in court so you might as well come clean" - standard pigshit bullshit procedure (never go into an interview with them without a lawyer, even if you have absolutely irrefutable proof of your innocence!).

But in what you mentioned here.. If someone is viewing material that already exists and has already been distributed, is there any manner in which that is harming the child to any degree? Especially if the child in question doesn't know of this specific instance. I don't doubt that the production of any pornography can be harmful to the individuals involved, especially where manipulation/coercion/force etc was involved, and especially where the person is unaware of the porn being made (adult with hidden camera or child not really grasping what is going on around them), but if you're unaware of someone getting their jollies off to a picture of you, how can that harm you? I'd love some realistic answers, not the "it's the same as abusing them all over again" type of stuff.

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Anonymous Coward

Re: so Desperation

If one thinks one is living in a police state, count how many times you or your friends / family have been arbitrarily stopped, fined, forced to pay a bribe, wrongfully imprisoned, beaten up, disappeared, etc

You quite obviously do not have to cross the USA border very often. While you usually do not need to pay a bribe you get a good subset of the remaining to remind you that USA claims of not being a police state are a bit far fetched.

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Anonymous Coward

Re: so Desperation

Just at the moment one can see the federal judiciary demonstrating their independence from government; they keep over turning Trump's executive orders.

Rule by judiciary is a form of aristocracy. Technically, this form of rule gives judges unlimited and unchecked power.

Judges are supposed to apply the law. When judges create new law they technically violate the will of the people and therefore the separation of powers.

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Re: so Desperation

"

... but if you're unaware of someone getting their jollies off to a picture of you, how can that harm you?

"

That's easy to answer. If the police catch someone with child porn and they can identify the children depicted, they will make the effort to inform every child and/or their parents of the fact that they have just found yet another copy of the material in the hands of a vile paedophile. This will cause embarrassment and upset which the police can then blame the sex offender for causing.

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"Scores of companies now encrypt their data," Terzian wrote. "In the EFF’s alternate universe, these companies are effectively immune from discovery and subpoenas."

Stop treating corporations as people and you wouldn't have that problem.

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In Terzian's alternate universe ...

... a subpoena for a specific piece of information about one customer of a company can only be handled by handing over the company's entire collection of data to the police and hoping that it eventually comes back unmodified.

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Anonymous Coward

"Scores of companies now encrypt their data," Terzian wrote. "In the EFF’s alternate universe, these companies are effectively immune from discovery and subpoenas."

Stop treating corporations as people and you wouldn't have that problem.

That won't help, but being a bit more transparent in all of this might. If the encryption providing companies have done their job well (and Apple's encrypted HFS is quite well done) they will not even be ABLE to help because, you know, it's encrypted and needs a password.

I can see why this chap didn't opt for storing the drive's password in the Mac's account keychain, but yes, I find it rather hard to believe he has "lost" the password. You could even just run a SMART test on the drive and you'd get its age, and from that you could assert that the drive has been used often enough for it to be accessible.

That said, if contempt of court was x years and being exposed as child porn handler/collector with associated jail time and fun time in jail (as child porn people are apparently not really liked) is longer I can see this chap taking the easy route out.

I would still have a look at his Mac keychain passwords to see if there's a trend visible - especially memorised passwords tend to follow a pattern for easy recall.

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Not entirely sure I follow

I can't think of many corporations that depend on a human's memory to produce decryption keys.

Mainly as they're collectively so distrustful of a single point of salary-renegotiation.

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Stop treating corporations as people and you wouldn't have that problem.

"That won't help..."

Yes, it would. If corporations are not people then corporations have no fifth amendment right to assert.

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@Vector

Quite so. I am reminded of this amusing nugget:

http://imgur.com/SCVWSCF

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Re: Not entirely sure I follow

"a single point of salary-renegotiation."

Thank you for that. It has got the day off to a fine start. :)

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If corporations aren't legal people, they also cannot be taken to court.

Corporations aren't natural people, which is a distinction lost on the "companies aren't people" ranters.

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As affirmed by the "Citizens United" decision, corporations are people enough to be granted constitutional rights which would include the right against self incrimination. To my mind, corporate structures should exist purely for financial indemnification and nothing more.

Of course, virtually every time a corporation gets sued, they settle "without admitting fault," so maybe the fifth amendment is irrelevant for them anyway...

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If corporations aren't legal people, they also cannot be taken to court.

I beg to differ. Nobody here, or anywhere else for that matter, would argue that an automobile or other inanimate objects are persons legal, natural, or otherwise. That has never stopped the United States from bringing lawsuits against inanimate objects. For example, I give you United States of America v. One 2003 Mercedes Benz CL500 (PDF) and US vs One 1985 Mercedes Benz and $12,000 in cash. Sadly I could go on for quite a long time using only Mercedes Benz. If I expand that to other automobiles or just cash or real estate it would be a very long list indeed. DDG, Google, Bing will all reveal just how sad it really is.

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Re: In Terzian's alternate universe ...

Absolutely correct. Terzian's example falls on it's face immediately. Furthermore, the discovery example is also good: you only get the information that is specific to the action. But the real killer is that during discovery, you may interview someone who has broken the law, and they have an absolute right to refuse to answer.

This precedent is terrible. The State doesn't have nearly the evidence it needs, so it has gone on a fishing expedition and put a defendant in a vice: keep silent and remain in jail, or open his mouth and go to jail.

My favorite analogy is information in a safe. The State executes a search warrant. If they are in a good mood, they will offer you the opportunity to open the safe for them. If you refuse, they will drill out the lock. If you create a safe that the State cannot break into, you should have the right to refuse to open it.

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RE: "If corporations are not people then corporations have no fifth amendment right to assert."

You don't just serve the papers on the Corporation: the papers are served against the officers of the Corporation.

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swm

"Stop treating corporations as people and you wouldn't have that problem."

That's not the problem - just treat the officers as co-conspirators and jail all of them if the corporation "person" is convicted of anything.

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I find it rather hard to believe he has "lost" the password.

Years ago I started writing a novel, worked a bit on it every day for some months. I was distrustful of those around me so I kept it encrypted when not working on it. The file name itself gave me a key to the password. One day, after several months of constant work, something happened. One possibility is that I forgot the password despite the strong clue as to its content. The other (which I would think is far less likely) is that somehow the password for the file got altered accidentally. I don't recall if I kept more than one copy of the file (but I suspect I would've done), but if I did then I couldn't open any version which means the problem probably was with me. To this day, despite the clue, I cannot open the file. I am more than 90% certain of what the password should, I have a good memory for these things, but I simply cannot get the file to open.

It would be interesting to know how long since the drives were last used, If they were in regular use recently then despite what I've written above it's probable he remembers the password OK, but if he hasn't used them for a couple of years then that's another matter, quite possible he has forgotten the passwords and the ones he's tried are honest attempts at unlocking the drive.

Personally, with the exception of my novel, I don't keep any encrypted stuff past it's intended use, there's little more frustrating than a drive that might have something useful on it but is encrypted and you can't recall the password. I'd rather wipe it and know it is gone.

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WTF?

My thought:

Q: Rather than contempt for not decrypting/giving the password to decrypt, how about just convicting them of "Destruction of Evidence" which is a crime, punishable by jail time?

A: That would be reasonable, and would not erode personal freedoms/protections enough.

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"

It would be interesting to know how long since the drives were last used, If they were in regular use recently then despite what I've written above it's probable he remembers the password OK

"

It is usually the case that (due to a backlog), the HDDs are not examined for several months after they have been seized, so it will be at least that long since he last used the password. I have occasionally forgotten a PIN when I have not used a card for 3 or 4 weeks, so forgetting a possibly complex password that has not been used for several months is perfectly possible, especially when you take into account the trauma of his arrest. Unless it can be proven *beyond reasonable doubt* that he remembers the password, he should not be imprisoned.

If the entire HDD is encrypted, then there would be no way of knowing when it was used last. SMART data will reveal its date of manufacture and how often it has been used, but as a HDD does not contain a RTC it will not show the dates on which it was used. Even if the encrypted data is in a container file, many encryption applications will stop the "last modified" and "last accessed" timestamps being updated.

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It is usually the case that (due to a backlog), the HDDs are not examined for several months after they have been seized, so it will be at least that long since he last used the password.

Many plausible reasons are given for why people can and do forget passwords, however, the key is in the official court record:

"Further, a detective who executed the original search warrant stated that Doe did not provide his password at the time because he wanted to prevent the police from accessing his computer. Doe never asserted an inability to remember the passwords at that time. Doe presented no evidence to explain his failure to comply or to challenge the evidence brought by the Government."

I suggest that at the time of the original search Doe was most likely to know his passwords, so unless the detective is misrepresenting what happened, but then surely Doe would have subsequently contested the detective's testimony, Doe actively refused to provide either a password or an excuse for his lapse of memory. I also suspect that examination of the computer showed recent used. Hence why the judge decided Doe hadn't forgotten his password...

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Unhappy

Future Justice

Why not cut to the chase; introduce a law which says "if we believe you to be guilty then you are. No evidence needed".

That would save a whole lot of court and police time and massively cut costs. That seems to be where we are heading anyway and it worked for Guantanamo detainees.

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Anonymous Coward

Re: Future Justice

That would go too far, but I don't think it's not unreasonable to demand access and then set a contempt of court charge - provided it's fully motivated by the fragments of evidence found on the Mac. Just doing it because he failed isn't good enough, but if there is cause to believe there's dodgy stuff on the drive I think there is some justification.

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Re: Future Justice

"Why not cut to the chase; introduce a law which says "if we believe you to be guilty then you are. No evidence needed"."

But there is evidence. There was a Mac Pro whose contents got decrypted and which showed evidence of child porn downloads. And there were encrypted hard drives connected to that Mac. If I had an encrypted drive and forgot the password, I would try any password I can think of until I get the right one or give up, and when given up it would be reformatted.

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Re: Future Justice

"But there is evidence."

Certainly there is. And they have that evidence. So build your case on that. (Which they did.)

Let us completely ignore whether the defendant knows the password or not. In fact, let us assume that he does know it and is indeed refusing to hand over the information, as the court 'found'.

THIS IS INFORMATION IN HIS HEAD. His thoughts; his secrets; his ideas.

The government wants to force the accused to speak for the express purpose of using those words as evidence against him. They are saying he should be forced to testify against himself. The fact that the thoughts they want him to give voice to represent passwords is irrelevant - it is information he has in his brain that the government wants to force him provide so it can incriminate him.

The fact that they have evidence of some crimes does not allow them to force the defendant to testify against himself to prove other crimes or a greater extent of criminality.

Say you had someone charged with stealing a car and had evidence sufficient to secure that conviction but the government (as the prosecutor) strongly believed that this same person was responsible for several other thefts occurring around the same time. The defendant does not have to provide testimony that puts him at those additional crime scenes - he can invoke his Fifth Amendment rights to refuse to provide that information.

The fact that there is evidence he committed one crime does not mean the Fifth Amendment no longer applies because it applies to every charge - every crime. This is so you can't find someone guilty and then laden him/her up with bunches of other crimes.

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