So if I forget my password, I can be in jail forever?
When you say, "but we have a constitutional amendment that protects us from self-incrimination", they say "sure but that doesn't apply here."
And of course it is child porn that is in question. It is a mere crime to "possess" it, that is to say, possess a hard drive on which images are found.
It goes without saying that images, at any point in time before, after, or during an investigation, can appear against your will on your hard drive.
But since it is so morally outrageous, it is the go to charge that prosecutors use to jail their personal and political enemies. Or just soft targets, I guess...
* Backup logs that show hashes of files that match that of known child porn image files.
* Testimony from the guy's sister that she has seen him decrypting the drives, and that he showed her child porn from the drives.
So yes, what you're saying is true, but in this case, I'm (reluctantly) on the side of the authorities.
I agree with the poster below you that they should charge him if they do have that evidence.
But if they are holding him in contempt while waiting to force decrypt so that legal precedent can be set, or if they're holding him so that this way he is in jail without getting credit for time served on his potential cp charges, then this is all a pretty hefty abuse of due process and etc.
We really need to defend even the worst people's right to a decent correctional experience. Why?
Because if you are ever wrongfully imprisoned, you would want the same. And it really does happen!
Maybe next time they won't have evidence, but there's a handy encrypted drive to get someone with instead.
The ruling here seems focused on the point of whether the knowledge/use of a password constitutes self-incrimination, which people have a Constitutional right not to engage in. IANAL, but it seems akin to arguing that you have a Fifth Amendment right not to give up a DNA sample.
edit: Looks like I'm wrong, defendant did use forgetfulness as a defense at one point, though that was ultimately not his only reasoning for appeal.
Look at page 7 of the document here:
https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...
Approximately one week after the Quashal Denial,
Doe and his counsel appeared at the Delaware County Police
Department for the forensic examination of his devices. Doe
produced the Apple iPhone 6 Plus, including the files on the
secret application, in a fully unencrypted state by entering
three separate passwords on the device. The phone contained
adult pornography, a video of Doe’s four-year-old niece in
which she was wearing only her underwear, and
approximately twenty photographs which focused on the
genitals of Doe’s six-year-old niece.
Doe, however, stated
that he could not remember the passwords necessary to
decrypt the hard drives and entered several incorrect
passwords during the forensic examination. The Government
remains unable to view the decrypted content of the hard
drives without his assistance.
If they had a mental scanner that allowed to get information out of people's brain without keeping them in jail forever or torturing them, it still be a problem - because without controls on it what the police would do is just round up everyone looking suspicious enough, brain-scan them en masse and use all the information gathered. And of course they would claim "if you're a honest man, you don't have a reason to be concerned".
So it's not only about torture & detention, it's about not giving police the power to own any information they'd like to have just because they want it. We have "due process" because police and state power is huge even as it is, without strict controls on it a private citizen has very little chance to resist any abuse and to correct any error.
He was running a Freenet node. Investigators were also running Freenet nodes, which peered with his. The were using a tweaked Freenet client that logs lots of stuff. So they know that chunks of child porn files went to his node. What they arguably don't know is whether he requested them, or merely relayed requests from other peers. But they have experts who will bullshit convincingly enough about that.
Edit: The Freenet Project, in my opinion, has irresponsibly relied on "plausible deniability".
But then the foregone conclusion argument could to be slightly disingenuous, depending on exact details which appears to be unknown at the moment?
But they can't really know that he was looking at child porn without finding saved files. They may also be interested in communications with other potential suspects.
It's not equivalent. The Supreme Court has mentioned in past decisions that combo locks may well count as products of the mind, and so fall under 5th protection, where key safes and compelled DNA gathering do not. See: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s...
Imagine having encrypted disk format where fast delete happens by writing over the main key in the volume header with random data and not all zero or some other magic value. You could have lots of deleted disks and memory sticks and go to jail because you can't decrypt them when asked.
https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...
I'm confused by this statement in the above ruling:
The Forensic examination also
disclosed that Doe had downloaded thousands of files known
by their “hash” values to be child pornography.
The files, however, were not on the Mac Pro, but instead had been
stored on the encrypted external hard drives. Accordingly,
the files themselves could not be accessed.
It's scary to me because I've forgotten my encryption passphrases more than once, and I'm highly-educated.
Seems like the proper thing to do with a drive you forget the password to is to zero the drive.
I know I have encrypted archives of very mundane data in incremental backups which I have no clue as to what the password is, and due to the technology involved it's almost impossible to remove the files without risking to compromise the ability to restore other files. Ooops.
But that's not all.
Depending on the country, your origin, your job, your beliefs, your principles, your preferences or whatever, a government could jail you just for being you. Forever.
If they ask for you password, give them a sample.
Immunity can mean being convicted for lesser offenses, or negotiating a less than maximal punishment.
I'm just saying that they have a way out, and it seems that they've made the judgment that the potential of finding other criminals (if that's even a motivation) for them is not worth it. And the courts are making the downside "indefinite prison", which isn't much of a downside for the prosecutor.
I think you can expect this to be used far more broadly if this is allowed. If I were a prosecutor I'd probably abuse the power too as yet another lever to use to get my way.
> > Here, based on Doe’s own statements, the testimony of his sister, and forensic analysis of the hard drives seized from Doe via a search warrant, the government already knows that Doe possessed and owned the hard drives, that he can decrypt them, and that they contain child pornography.[0]
Based on computer logs (of checksummed files being transferred to drives (and, importantly, knowing those filepaths) he admits to owning), online activity, witnesses, his own admission, and his unlocking of his phone provided the evidence needed to reasonably detain him on suspicion of a serious crime. The defendant is known to collect child pornography, even provably sourcing his own from family members -- again, the source document provides far more detail.
Further, my understanding is that the complication is his refusal is frustrating the process of deciding exactly which crimes for which to charge him and he is acting in defiance of a court order (to produce evidence).
[0] https://cdn.arstechnica.net/wp-content/uploads/2017/02/fedsr... (warning: some parts are sickening)