Man jailed 16 months, and counting, for refusing to decrypt hard drives

It's hard to covertly sign any legislation as the president, notwithstanding secret courts and laws (fisa, patriot act secret interpretations, etc).

Just saying, we don't need to try to make people think a certain way by guiding them with weasel words, people can read facts and make a judgement, without trying to subtly assign some bias in either direction.

It is literally the same as ordering me to tell them how to make sense of the unreadable data.

I'm not giving them a plaintext copy of something already existing elsewhere (assuming no unencrypted backups), but producing new information for them.

And unless you used FDE with full authentication (AEAD), which almost nobody does, there's nothing that says that this particular ciphertext represents the exact plaintext I've had at any given point in time.

With XTS mode (Truecrypt) you can cut and paste together different blocks from different ciphertexts under the same key for as long as they're in the right positions. Depending on how much you know about the computer and if you've got access to multiple backups, you can splice together something that even if it doesn't contain anything illegal, it would look suspicious and incriminating.

Consider for example LE getting your full file version history of a container from Dropbox.

And revealing the keys is a kind of testimony that you have had read/write access to the drive, and that it indeed is encrypted (not just random).

Most of the time, absolute certainty that someone is guilty is not possible; that's why the criminal standard is "beyond a reasonable doubt", not "proven to the point of mathematical certainty".

In this case, the simple fact is that the court does not believe Rawls's assertion that he is unable to comply, so he remains detained on contempt. This will change once the court is convinced that Rawls is indeed no longer able to comply.

Judging the credibility of testimony is not only one of the primary activities of judges and juries, but, again, I categorically do not believe that you truly believe there is no difference, whatsoever, in indicia or outward evidence, between telling a lie and telling the truth. It's not a remotely credible position to take. It is absolutely the case that humans can be very bad at judging the difference between lying and telling the truth, but the assertion that there is no observable difference is nonsense. It is the reason there are such a thing as "good" actors and bad actors. It is the reason that athletic events in movies are staged, as opposed to actually performed. It is why special effects exist.

Additionally, these judgments are made in context. You aren't judging the atomic, context-less testimony of a spherical witness on a perfectly cubical witness stand suspended in an infinite vacuum. You are judging a human, sitting in a court, in the context of a whole host of other evidence and testimony. So, basically, you are making one of two claims: (1) that humans cannot judge the difference between truth and lies and (2) that it is improper for humans to make these judgments in the context of criminal justice. I disagree with both, but in this case all that matters is the latter - I will cede that it is often the case that humans mess up on individual judgments, but this does not mean that putting humans in charge of these decisions is not the best option we have when it comes to criminal justice.

What you are pointing out is that justice gets tested at the edge cases - and what we have here is an edge case. I understand the engineer's desire to have proof-positive, objectively testable indicia to differentiate between different case-states - in this instance, the difference between being a convincing liar and telling the truth - but that is the central reason we have a court system that is populated and run by humans and not machines. Our "best guess" is what it comes down to. This does, in fact, result in miscarriages of justice - there are supposed to be correcting mechanisms built into this system to compensate for this as well, and the general release-valve for these errors is the idea that you are supposed to be innocent until proven guilty. We have, in fact, stumbled upon a bug in this system here - judges can incarcerate individuals for contempt indefinitely, and this should not be the case. There are other factors going on in this circumstance that render the issue more complicated, and there are ways to address this bug with procedure - hearings, appeals, evidentiary testimony or expert testimony - but to simply state that the solution is to make the system recognize that it is impossible to tell the difference between truth and lies is an absurd notion that totally undermines its very foundation. It is not just throwing the baby out with the bath-water - it is then bulldozing the house too.

It is a primitive, or axiom, of the court system, that humans can be asked to make value judgments about the truth and falsity of assertions presented to them and to judge the veracity of the witnesses making those statements. If you categorically disagree with that axiom, you disagree with the entire jurisprudence system. In this case, I'd like to quote Churchill, when talking about Democracy:

"It's the worst form of Government, except for every other."

If you have a better idea about how to run the court system, I'm all ears.

- That the viewer of adult porn shouldn't be prosecuted for viewing porn.

or

- That there is a societal / governmental acceptance of the exploitation of men and women, as long as they are adults.

The easy argument out of this hypocrisy is to claim that while children can never consent, adults can, but then that opens the can of worms of whether they're "consenting" under coercion, like under threat of not getting hired again to do work or if they're enslaved, and the answer to that is that it depends on the case.

At this point it turns political, with one side generalizing that most do consent, and another side also generalizing that most do not consent, and reaching an agreement is impossible because there is a half-truth to both sides, and after a lot of heated arguments, people get worn out, and nothing gets resolved.

So instead I'm just going to direct people to read up on the topic of victimology, which is a sub-genre of criminology, specifically how it affects human traffic (which are >90% women, and has a total volume of enslaved people higher than it was when slavery was legal) and get informed and then make up their own mind about it without bothering others.

Furthermore, there is presumably enough existing child pornography out there to satiate any viewer for their entire life. Perhaps increasing access to it is the way to discourage more being made! At any rate, paying for it could still be a crime, as opposed to the insanity of strict liability for bitstring possession.

Not necessarily, and even so, can it be proven?

And if obtaining and distributing the output material of a content industry without payment is supporting the industry, let that be put in writing…

We have to understand that, much like it's a military's responsibility (and desire) to go to war, it is the goal of spy agencies to gather all the intelligence it possible can. In both cases it is up to law making bodies comprised of "the people" to check these agencies' ambitions.

Didn't it go further than this? Just searching the data for some signal wasn't a "search" because a machine did it, it was only a "search" if you were a match and if you were a match then they had "probable cause" for the search.

Not entirely sure how accurate that is but FWIW it seemed like that was the accepted reading of the twisted reasoning on HN back when that came out.

It is quite a quandary :(

In fact, it seems dangerous for the judge to be able to jail anyone without a jury verdict. It seems to bypass legal protections.

There's a procedure though that we use to determine the likelihood of someone's guilt, based on evidence and legal arguments. Would you like to hear about it?

Tread carefully. The protections you give others are the protections you'll enjoy yourself if needed. And hoping you'll never need them is a very shortsighted strategy.

That's what you think until you're falsely accused of such a crime...

Now, replace child pornography with any other thing. Would you question me saying that he'd been downloading that thing?

Not only would this expand the scope of "criminal" to include people who have not committed such crimes (and may never do so), but I think it's a futile and petulant exercise, albeit one with benefit to intrusive law enforcement (and I'm echoing feedback provided elsewhere in this thread).

Oh come on, now who's being hyperbolic. Possession of child porn is clearly not the vilest of crimes, as child molestation is obviously much, much worse. And don't pretend like those are remotely the same.

Police have more than enough tools to catch people using encryption without the ability to compel people to decrypt data. At the end of the day if you have to try force someone to enter a password or fetch you a key then you already fucked up and should have to admit your failure and try assemble a case with what you were able to get before you fucked it up by not getting the data in-flight or otherwise unencrypted.

To outlaw or end programs like PRISM you'd have to take on the entire political establishment, the military industrial complex and all branches of the judiciary and law enforcement.

It'd be far easier to legalize CP than do away with PRISM and the like.

In general, you're not wrong. In this case, though, you are. Matthew 19:16-19 [1]:

> 16 And, behold, one came and said unto him, Good Master, what good thing shall I do, that I may have eternal life? 17 And he said unto him, Why callest thou me good? there is none good but one, that is, God: but if thou wilt enter into life, keep the commandments. 18 He saith unto him, Which? Jesus said, Thou shalt do no murder, Thou shalt not commit adultery, Thou shalt not steal, Thou shalt not bear false witness, 19 Honour thy father and thy mother: and, Thou shalt love thy neighbour as thyself.

Had Christ intended to modify the commandment to "thou shalt not kill", I expect He would have.

[1] http://biblehub.com/kjv/matthew/19.htm

Not a christian per se, but theoretically speaking, the name is not some mere dressing: it gives the justification (or lack thereof) for the act.

So it makes sense that something described with a different name changes the act in "God's eyes" -- the same way that e.g. killing someone to take their money and killing someone to stop them from killing you are not both "murder".

Besides, what's allowed to humans and what's allowed to God doesn't need to be the same thing. No hypocrisy in that, we're talking about different entities, and nobody said they are equal (on the contrary).

That's what we discussed. Given what the constitution says, that ruling is BS.

The law and supreme courts are politics --not some clean, divine, body that comes with only just rulings.

"Liberty and justice for all", for example, if I'm not mistaken, was in there from the beginning, but the courts could not give a rats ass for slavery, segregation, etc, until they were forced to by popular protests.

So, that 2/3 of the congress is not much consolation either.

These are not mutually exclusive, and I personally want people to maintain the right to own guns.

What I don't want is semi-automatic rifles and handguns to be available to the population at large and without any regulation whatsoever so that they can easily be incorporated into some lunatics shooting spree.

I know this will be unpopular: all semi-automatic handguns and rifles should be outlawed.

but cities like new york somehow removed it.

Which is exactly the inverse of what it should be: the spirit of the law being above and adjusting the "operative" part.

There's a public good from the right to avoid self incrimination, it's less clear what the public good of protecting people's right to keep content hidden in the face of a court order.

Quoth Justice White from that decision:

    > Within the limits imposed by the language of the Fifth Amendment, which we
    > necessarily observe, the privilege truly serves privacy interests; but the Court has 
    > never on any ground, personal privacy included, applied the Fifth Amendment to 
    > prevent the otherwise proper acquisition or use of evidence which, in the Court's 
    > view, did not involve compelled testimonial self-incrimination of some sort.

The third case appears closer to the mark in that it discusses the way in which produced documentation can be employed to incriminate a witness who produced it, but that case specifically seems to involve the interaction of the statute under which the accused was granted immunity. It also deals with a witness who produced documentation pursuant to a subpoena and a grant of immunity provided in connection with that, not an accused who is the subject of the investigation.

I'm not sure where you pulled these citations, but none of them appear to have any relevance to the assertions you've made.

Some research seems to indicate that the question of whether a defendant must supply the combination to a safe has never been directly considered by the Supreme Court, though it's been mentioned, tangentially, as a distinct thing from using a key to "open a strongbox", with the implication that disclosing a combination may be protected but opening a safe with a key wouldn't be. This analogy is employed in one place in the decision issued in the third case, but it's only for illustrative effect.

I'm sure that in the not-too-distant future we'll see a case about this make it up to the Supreme Court (possibly even this one). My expectation is that SCOTUS will rule that it is proper to compel the defendant to decrypt the disks.

An encryption key sounds closer to a safe key than to a combination lock. A small broken analogy later, the judge rules that encryptions keys are keys, and the defendant may be compelled to provide them.

Just because we called it a a "key", instead of the more accurate "combination", or "code".

Yeah, as I said in my original post, I agree with this. There needs to be a limit on contempt-of-court.

The flip side, however, is that someone who does something that would carry a large prison sentence would be incentivized to violate orders, spend one year waiting out contempt charges, get charged with obstruction and sentenced to 3-5 years, making a total of 4-6 years jail time. That could be a big win for the criminal if complying with the government's order would allow them to prove a crime that carries a much stiffer sentence.

Whereas with a well-understood, industry-accepted cipher, you can use the key and obtain the evidence exactly as it sits independent of the defendant's disposition and without requiring any unique or special tooling to be provided by the defendant. There is no opportunity to influence the contents of the decrypted disk. Ultimately, encryption may end up strengthening the prosecution's case because it can't reasonably be argued that any evidence tampering or manipulation occurred prior to decryption.

When the defendant either discloses the passphrase or enters it to unlock the disks for the police without disclosing it, the disk will either decrypt or not, and when it decrypts, it will either contain the evidence or not. Nothing said to or done by the defendant since the evidence was seized can have any influence on the contents of the disk. That means the Fifth Amendment's purpose of preserving a prosecutorial justice system dependent upon the use of objective proof rather than individual manipulation remains intact.

It would be interesting to see how this would've played out if Rawls had been using something like TrueCrypt's hidden container encryption, which uses steganographic techniques to allow the user to generate distinct blocks of cleartext from the same block of encrypted data. In that scenario, theoretically, there is no way to prove that the hidden container exists and that you have not fully complied with the police's request to decrypt.

Rawls is rolling the dice here. He's hoping that he can press this issue on constitutional grounds and that he'll prevail, which will prevent the investigators from accessing the contents of his disk and, in all likelihood, prevent his conviction. If he wins on the constitutional matters, he'll be able to walk free as a bird when the case is decided (and may end up being entitled to compensatory damages). That's the outcome he's hoping for.

If he loses the constitutional case, he will probably decrypt the disks and allow the justice system to finish processing his case so that he can get an end date on his incarceration. In all likelihood, complying with the order will lead to his criminal conviction and a sentence of at least several years. After that sentence completes, he will be a convicted felon, and in most states, he will have to register as a sex offender. He will have to live under a variety of restrictions related to those statuses for the rest of his life.

Rawls's hope is that the court will rule that he cannot be ordered to decrypt his disks on constitutional grounds. This is all a wager on his part. As his incarceration on contempt charges is essentially voluntary, characterizing it as an "indefinite" or "life" sentence is improper. He has no sentence. To go free, he need only comply with the lawful order that was served upon him (of course, he will probably be arrested on charges related to the data on his computer shortly thereafter, potentially before leaving the jailhouse), or convince a higher judge that the order should be stayed pending the outcome of the lawsuit challenging its validity.

Another potential avenue to freedom, at this stage, would be convincing Congress and the President that the law should be modified so that either a) the judge's order is invalidated by new statutory requirements and the constitutional matter is no longer relevant; or b) the crime being investigated is no longer criminal.

Compelled confessions are not "already invalid" separate from the Fifth Amendment. To the extent that statutory restrictions prevent it, that arises from the same impulse of the Fifth and is most likely primarily intended to be supplementary thereto.

The right against self-incrimination is intended to establish a system of justice that requires prosecutors to obtain real proof rather than making it dependent on manipulating the accused, who may well be innocent, into believing that a confession is the only way out (that is, confessions extracted by coercion).

Similar rights existed in multiple state constitutions prior to the ratification of the federal constitution. Note also that incorporation didn't begin to occur until the late 1800s-early 1900s, so independent state statutes protecting this right would've been necessary, and their existence doesn't mean that the Fifth didn't also target this protection.

>Do you have a source for this claim?

This overview seems pretty accessible: http://www.slate.com/articles/news_and_politics/explainer/20....

Quote:

>The Fifth Amendment [...] was created in reaction to the excesses of the Courts of Star Chamber and High Commission. [...] These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused. [...] With the abolition of the Courts of Star Chamber and High Commission, the common law courts of England incorporated this principle of nemo tenetur—that no man should be bound to accuse himself. By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. This was based on the belief that coerced confessions were inherently unreliable.

No, this isn't fine. If there is a lawful order to gather evidence related to the crime, the accused can be compelled to comply. For example, the accused can be compelled to provide documentation under subpoena, submit to police interrogations, be a witness in court, etc.

They cannot be compelled to testify against themselves. When someone invokes the Fifth Amendment, the presiding officer must decide whether there is a reasonable claim that responding to the question or demand as posed may incriminate that person. If the presiding officer is not satisfied that such a connection exists or that the inculpatory value of the response does not rise to the level of testimonial self-incrimination, they can, and do, order the person to comply. If the accused feels this order has been wrongly made and that their Fifth Amendment rights either were or could be violated, they are free to challenge the order in court, but that doesn't mean that there won't be consequences for non-compliance while the challenge processes (a judge overseeing the challenge may or may not issue a stay or restraining order to limit such consequences).

>Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)?

No, because that unquestionably rises to the level of testimonial self-incrimination, whereas granting access to something found during the execution of a legal search warrant does not.

>Because it looks mighty similar to disclosing password to encrypted evidence of the crime.

Ultimately the courts will have to decide whether this is similar enough or not. Under the current law, the answer is non-obvious, and it must be established by the conventional legal process, which yes, is indeed pain-stakingly slow. But there is no exceptional injustice underway here. This is the way the system works. It's not always pleasant, but then, neither is the real world.

If you want to discuss reforms that could require all cases to reach a final resolution within 12 months of their initiation, I'm all for that. Dragging these proceedings out over 5-10 years is very frustrating. But again, the backlog and slow conventions of the courts are a different matter than whether or not this man's constitutional rights are being violated (except insofar as these apply to the 6th Amendment, which guarantees the right to a speedy trial; it does not, however, guarantee the right to a speedy appeal), whether his detainment qualifies as "torture", or whether some other grave miscarriage of justice is occurring here.

The courts do not agree with that interpretation. Defendants and witnesses are required to comply with subpoenas and warrants and produce documentation on demand, unless they can satisfy the court that production of said documentation is potentially inculpatory and that providing it rises to the level of testimonial self-incrimination under the facts of the case. That's going to vary and the accused may win a lawsuit to confirm that that is indeed what's occurring in this case. At the moment, it's an unsettled question.

>He was not given a speedy trial (6th).

He hasn't been arraigned, so of course he can't be tried. He's been detained for contempt. If he wants a speedy trial, he can comply with the court order that allows the investigators to continue with his case, and he can go free in the mean time.

Perhaps contempt-of-court needs to be reworked such that indefinite detention under it is not allowed, but that's not a constitutional issue. Contact your representatives and let them know you want this law passed.

>He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th).

He can end his detainment at any time by complying with the court order. He is willfully keeping himself imprisoned. He has not been sentenced and, theoretically, will be free to go once he complies with the court's order. It is very likely that he has chosen incarceration and a constitutional challenge because he prefers the remote possibility that he may win this challenge to the near-certainty of a felony sex crimes conviction if he complies.

>He is guilty until proven innocent.

It may be that some type of check on extended contempt detainments is appropriate. For example, convening a jury to evaluate the accused's ability to comply every 90 days may be wise.

But practically speaking, he is not guilty; he is being detained because he refuses to comply with a court order. If the court is unable to enforce its orders any time a person says "Sorry, I don't remember how to do that", its authority will vanish.

I understand the contention is that decrypting disks is testimonial self-incrimination. That's the issue before the court, and for whatever reason (which could probably be looked up), the courts hearing that issue declined to stay the original order while the issue pends.

I personally do not find that argument convincing, as the contents of the disk need not, and indeed cannot, be altered by the accused to plant a "false confession" merely by unlocking them. Any evidence revealed by the decryption would've been as it was before any threat or incentive was issued.

Courts have ruled on a variety of occasions that complying with requests to furnish evidence which may be inculpatory does not by itself rise to the level of testimonial self-incrimination. Imagine the fallout from a world where the courts did indeed rule that the defendant was not required to comply with any subpoena, warrant, or order that may reveal criminal behavior. Our system would fall apart right away.

The 5th is not designed to allow people to destroy or hide evidence. It's designed to prevent inquisitions, where a person's guilt is determined based on the linguistic trickery and/or the direct threats made by an inquisitor, instead of an evidentiary standard that must be proven. The 5th amendment still allows for confessions and it still allows the police to require accused individuals to furnish evidence and documentation, it just provides a protection to check the prosecutor's incentive to force false confessions.

>All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent.

There is no absolute "right to remain silent" in the United States. There is only the right to refrain from testimonial self-incrimination. Judges can and do regularly order persons to provide legitimate answers to questions, orders, and subpoenas if they cannot satisfactorily demonstrate how responding to them could reasonably jeopardize this right.

>We don't even know if this guy has the password.

True, there's no way to know that with certainty. However, there is a way to know beyond reasonable doubt. His regular use of the computer necessarily required him to unlock the disks. It's clear that at the time the order was issued, he knew how to do it.

Perhaps he can make the case that sixteen months after the fact, he is no longer able to recall the passphrases, and maybe that's his strategy; at some point, as time wears on, this will have to be considered credible.

If software gives you an option to use 2 keys or 1 key in the beginning ( so half data will be garbage ) you can always deny you have 2 keys

The thing I found curious though is that the legal argument seems to depend not on providing your encryption key (which is generally assumed to be protected), but the act of decryption.

In the absence of the key, any plaintext produced from a ciphertext is... questionable?

Modern justice is all like this:

We know this guy perpetrated, but it was some time ago and he's well connected and it's awkward for us so we're going to "hate his sin" but without any effect on his well-being. But you, dear listeners, please behave.

Ah, on unrelated note, we jailed a poor person for 10 years for a fraction of damage because it was politically convenient.