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General discussion (archive)Woman forced by court to unencrypt her disk(94 posts)(94 posts)
(94 posts)
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This is my favourite topic
Posted January 28, 2012
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da187jimmbones: Hard drives and safes are just flat out different, even though they share some similarities.
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xyem: We're not talking about HDDs and safes, we are talking about encryption and safes - and they are identical.

They both secure their contents (protection).
They both require a key (authentication).
They are both breakable given enough force/time.

....
They're really not, you're essentially arguing she has to interpret something they cannot understand. She's under no obligation to do so. In a safe, the evidence is not in their hands that's why you can be compelled to hand it over as part of a warrant process, they have the evidence on the harddrive they simply cannot make sense of it, she's under no obligation to help them convict her by helping them understand the data just as a murder suspect is under no obligation to explain how he might have killed the victim.
Posted January 28, 2012
Unrealistic? There's not single case except that one of destroyed evidence after it was secured.

If a suspect holds drugs in his house, and he's not allowed to destroy it or throw it away, youre indirectly force them to self-incriminate, this is how I see it.
Post edited January 28, 2012 by keeveek
Posted January 28, 2012
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Red_Avatar: I have heavily encrypted files myself that would take months to decrypt - or years considering the incompetence of law enforcement agencies. If they demanded I decrypt it for them, I'd tell them to go to hell. I store all my very personal stuff in there in case my PC gets stolen (you never know) or hacked. Important files such as screenshots of my bank details, passwords for certain accounts, etc. The password is 50 characters long and encrypted with Truecrypt - check it out, it's free. I used it at work as well, to hide all my personal stuff like mp3s, etc. so that I simply can unmount it and all of it is gone.
If you've used Truecrypt properly there will be no decrypting of those files without obtaining the passcode to decrypt the key. You realize that if you burned all the remaining fuel in the sun to power a modern CPU to brute force it you'd likely run out of electricity before you were done, right?
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crazy_dave: No you get found in contempt of court and sent to jail until you comply with the order.
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Red_Avatar: In other words, the US once again proves it's as far a police state as you can get in the West. It's disgusting - they throw laws besides them as it suits them. You can bet a rich guy would get off and the judge would happen to have nice and expensive new patio furniture a month later.
Civil contempt charges have been a problem in the US for a long time now.
Post edited January 28, 2012 by orcishgamer
Posted January 28, 2012
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keeveek: Unrealistic? There's not single case except that one of destroyed evidence after it was secured.

If a suspect holds drugs in his house, and he's not allowed to destroy it or throw it away, youre indirectly force them to self-incriminate, this is how I see it.
Yes, the operative word being after it's been secured. We don't have trouble with that either. What we do have trouble with is people destroying the evidence before the police have the opportunity to secure and collect it.

And no, that does not indirectly force them to self-incriminate. By that reasoning you wouldn't ever be able to execute a search warrant as handcuffing the suspect without allowing him or her to destroy the evidence would also be indirectly forcing them to self incriminate.

Perhaps you don't have criminal gangs in Poland, but in the US we've had periods of time like the '20s where mobs were wreaking havoc on the country and they still exist, albeit on a smaller scale with fewer murders, but assuming that you're going to be able to secure both all of the evidence and all of the suspects at the same time is just a non-starter.

I think on some level you realize that, because it's patently absurd to assume anything else.
Posted January 28, 2012
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keeveek: Unrealistic? There's not single case except that one of destroyed evidence after it was secured.

If a suspect holds drugs in his house, and he's not allowed to destroy it or throw it away, youre indirectly force them to self-incriminate, this is how I see it.
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hedwards: Yes, the operative word being after it's been secured. We don't have trouble with that either. What we do have trouble with is people destroying the evidence before the police have the opportunity to secure and collect it.

And no, that does not indirectly force them to self-incriminate. By that reasoning you wouldn't ever be able to execute a search warrant as handcuffing the suspect without allowing him or her to destroy the evidence would also be indirectly forcing them to self incriminate.

Perhaps you don't have criminal gangs in Poland, but in the US we've had periods of time like the '20s where mobs were wreaking havoc on the country and they still exist, albeit on a smaller scale with fewer murders, but assuming that you're going to be able to secure both all of the evidence and all of the suspects at the same time is just a non-starter.

I think on some level you realize that, because it's patently absurd to assume anything else.
You're both right (I think) sort of. I don't think you can charge someone because he flushed his weed while the you (the cops) were still kicking down the front door. You can, however, be charged with obstruction of justice, once you've been charged, for destroying evidence.
Posted January 28, 2012
You can't but you can secure evidence enough for prosecution.

If you're afraid that a suspect will destroy evidence - arrest him.

If anybody else tries to destroy the evidence (other mobsters, for example) then it's a felony.

But a suspect himself is not incriminated for doing this.

In your case, for example, if I will buy a gun illegaly, I would have to posses that gun to the rest of my life, because if I throw it away, I will be obstructing the justice. It's riddiculous.

And if im smoking the weed, im not only smoking it, buy also destroying the evidence.
Post edited January 28, 2012 by keeveek
Posted January 28, 2012
From my former work as a prosecutor (albeit only for a very short time) I can confirm keeveek statements. What he descibes are all parts of the "nemo tenetur se ipsum accusare" principle which is one of the very cornerstones of a rule of law judical system.

I'm staying out of the discussion, as keeveek is doing a tremendous job here in explaining it. Let me just make clear that the "lying to the police" actually can go pretty far. E.g. you are allowed to incriminate another person (verbally only, of course) of the crime you commited if it comes down to a "him or me" point. And, as keeveek has pointed out, the securing of evidence is the duty of the prosecution. E.g. if the prosecuted brakes into an evidence room and destroys evidence. He can be charged for breaking into the building and the fact that he destroyed the evidence pretty much incriminates him to a conviction. But he won't be charged with obstruction of justice.

The state, however, can arrest somebody for the duration of the trial to secure evidence. This is one of the few instances were an innocent person can be incarcerated for a longer time.

This application of the "nemo tenetur se ipsum accusare" is given within the EU. So the US might have a different interpretation.
Posted January 28, 2012
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SimonG: From my former work as a prosecutor (albeit only for a very short time) I can confirm keeveek statements. What he descibes are all parts of the "nemo tenetur se ipsum accusare" principle which is one of the very cornerstones of a rule of law judical system.

I'm staying out of the discussion, as keeveek is doing a tremendous job here in explaining it. Let me just make clear that the "lying to the police" actually can go pretty far. E.g. you are allowed to incriminate another person (verbally only, of course) of the crime you commited if it comes down to a "him or me" point. And, as keeveek has pointed out, the securing of evidence is the duty of the prosecution. E.g. if the prosecuted brakes into an evidence room and destroys evidence. He can be charged for breaking into the building and the fact that he destroyed the evidence pretty much incriminates him to a conviction. But he won't be charged with obstruction of justice.

The state, however, can arrest somebody for the duration of the trial to secure evidence. This is one of the few instances were an innocent person can be incarcerated for a longer time.

This application of the "nemo tenetur se ipsum accusare" is given within the EU. So the US might have a different interpretation.
The US has a common-law system, not a civil-law one, but the principle is basically the same, "...nor shall be compelled in any criminal case to be a witness against himself." However, the US reading is that the accused cannot be required to testify against himself. Not that the accused has the right to withhold or destroy evidence against himself.

In other cases, judges have held that an accused person need not reveal a computer password: that refusing to do so is protected under the right not to self-incriminate. In this case, the judge is saying that the accused is not being required to reveal her password (testimony), but to produce the unencrypted files (evidence). Whether this is a distinction without a difference will surely be argued in an appeals court.
Posted January 28, 2012
I know I shouldn't be connecting any dots here but first the FBI/MU thing goes down and then this? I really can't help but wonder what the hell is going on.

Orcish, you're right. I just want to add two phrases for any Canadians reading -ask if you are being arrested or detained and ask for the official language of your choice as well.
Posted January 28, 2012
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orcishgamer: Yes, in the US you can be forced to hand over a safe key, if you possess it. However, it has been generally held you cannot be forced to hand over the contents of your mind. The prosecution is trying to do an end run around this by claiming they don't want to know or be witness to the password (i.e. the contents of her mind) they simply want her to provide them with the decrypted contents of the drive. This argument is obvious horseshit to me, but it's the kind of thing our legal system wrangles over constantly.

Also, as some have erroneously claimed, on other message boards, that the founding fathers never could have expected encryption I'd like to point out, not only is this bullshit historically, but many of them used encryption, including Thomas Jefferson. They were well aware of the implications to our laws when they wrote them.
I was thinking that this (historical use of encryption) is more appropriate an analogy than the safe one. Physical evidence has already been obtained, so it's just a matter of getting at the information contained therein. If the police obtain a warrant to search one's home and discover papers written in a code they can't break, can they compel one to decode those papers?
Post edited January 28, 2012 by nuuikle
Posted January 28, 2012
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cjrgreen: [...]
Not that the accused has the right to withhold or destroy evidence against himself.
[...]
To be perfectly correct. The prosecuted isn't allowed do to such thinks with the evidence, but he can't be charged with obstruction if he does. A very small difference, but I just wanted to point this out.

And I think that "withholding of evidence" is also covered in the US, as a murderer certainly doesn't need to hand over the weapon ;-). But my grasp of common law is limited and always will be.
Posted January 28, 2012
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orcishgamer: They're really not, you're essentially arguing she has to interpret something they cannot understand. She's under no obligation to do so. In a safe, the evidence is not in their hands that's why you can be compelled to hand it over as part of a warrant process, they have the evidence on the harddrive they simply cannot make sense of it, she's under no obligation to help them convict her by helping them understand the data just as a murder suspect is under no obligation to explain how he might have killed the victim.
If it came across that I was arguing that she should be giving them the password, that wasn't my intention.

Can you be forced to give the combination/password to a safe?
Posted January 28, 2012
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cjrgreen: [...]
Not that the accused has the right to withhold or destroy evidence against himself.
[...]
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SimonG: To be perfectly correct. The prosecuted isn't allowed do to such thinks with the evidence, but he can't be charged with obstruction if he does. A very small difference, but I just wanted to point this out.

And I think that "withholding of evidence" is also covered in the US, as a murderer certainly doesn't need to hand over the weapon ;-). But my grasp of common law is limited and always will be.
"Withhold" would mean to refuse to comply with a valid writ, warrant, subpoena, etc. These often specify that the accused must yield up certain evidence. It's very much pertinent in a case such as this, where the evidence is records of an alleged fraudulent business, and where the evidence cannot merely be taken by search or force.
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orcishgamer: They're really not, you're essentially arguing she has to interpret something they cannot understand. She's under no obligation to do so. In a safe, the evidence is not in their hands that's why you can be compelled to hand it over as part of a warrant process, they have the evidence on the harddrive they simply cannot make sense of it, she's under no obligation to help them convict her by helping them understand the data just as a murder suspect is under no obligation to explain how he might have killed the victim.
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xyem: If it came across that I was arguing that she should be giving them the password, that wasn't my intention.

Can you be forced to give the combination/password to a safe?
In a number of previously decided cases, no, you can't. However, a safe can be opened by force. A well-encrypted filesystem can't. Similarly, in other cases, the accused could not be required to give the password to an encrypted disk.

The prosecution and the judge are trying to run around those cases by saying that she doesn't have to give up the password; she could type it in without them watching, so long as they got access to the files.

It's also not clear that she even knows the password.
Post edited January 28, 2012 by cjrgreen
Posted January 28, 2012
It's exactly as SimonG says - it's not like you're allowed to lie, to destroy or hide the evidence, but you will not be charged with obstruction of justice if you do so.

Btw. the Police uses this fact in a very clever way. There's nothing easier, when you don't have a suspect, than staying at the scene and wait for him to arrive to hide the evidence. If he shows up to wipe out the traces, you have half of the job done to send him to jail.
Post edited January 28, 2012 by keeveek
Posted January 28, 2012
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xyem: We're not talking about HDDs and safes, we are talking about encryption and safes - and they are identical.

They both secure their contents (protection).
They both require a key (authentication).
They are both breakable given enough force/time.

If they rules were different, which set of rules would a safe that has a digital storage device inside fall under? The safe one because it is a physical safe or the encryption one because it is protecting digital data? If you split the encrypted data between two devices (like RAID0), can you be forced to give the second device up even though its absence is physically protecting the data on the other one?

I don't see where the "analogy" comes apart.
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da187jimmbones: I won't argue with you about the similarities and differences of a safe and encryption. I think we just won't agree about whether the legal analogy is proper. One stores digital data exclusively, the other can store a bunch more than that, including physical items. They are far from identical. Put an actual woman's head into "encryption."

A safe and encryption have similarities, but they are ultimately different. The legal system will accept this eventually and technology items like encryption will have it's own set of rules, and won't rely on comparisons to non technology items like safes.

I don't know why you put the word analogy in quotes. It is an analogy. Nothing can change that.
I'm in agreement with Xyem, the fact that the information is digital exclusively has little relevance to the workings of the analogy. The fact is that it contains evidence that they have a warrant to search. That the files are digital stored instead of physically stored is inconsequential.
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orcishgamer: They're really not, you're essentially arguing she has to interpret something they cannot understand. She's under no obligation to do so. In a safe, the evidence is not in their hands that's why you can be compelled to hand it over as part of a warrant process, they have the evidence on the harddrive they simply cannot make sense of it, she's under no obligation to help them convict her by helping them understand the data just as a murder suspect is under no obligation to explain how he might have killed the victim.
That's a fair line of argument, but then I think that a person should not have to hand over a key to safe either under that line of argument - the police have the safe under their control (and therefore its content) and you should be under no obligation to help them open it. However, you've said the law disagrees and that you can be forced to hand over a key. If so, then that law should be changed for this argument to hold.
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timppu: What occurred to me right away, and was also hinted in the article, why doesn't the suspect simply say she(?) has forgotten the password? I have sometimes forgotten WinZip passwords, and at least once I've forgotten the hard disk decrypting password for one old Fedora Linux installation.

But then, I'm not sure if these systems have usually some kind of backdoor for those cases you forget the password, at least by contacting the company who made the software... but that would kinda defeat the purpose.
Sometimes these systems do and the police can impel a company to help them decrypt the files. As for "forgetting", that is a good line of defense, but a judge *might* still be able to use contempt of court against you depending on if they believe you are lying - so it could come down to the individual judge in this case. But in general you can't be held in contempt for something you are unable to comply with - but then it can come down to whether or not the judge believes you are unable to comply.
Post edited January 28, 2012 by crazy_dave
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This is my favourite topic
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General discussion (archive)Woman forced by court to unencrypt her disk(94 posts)(94 posts)
(94 posts)