Compelled Decryption and the Privilege Against Self-Incrimination
papers.ssrn.com
papers.ssrn.com
I strongly disagree with this interpretation. It's an old argument, I follow the reasoning behind it (I actually think the author does a good job arguing in favor of this position), but at the end of the day I'm just too uncomfortable with how this would work in practice.
During a normal search, they get a warrant, tell you to produce some documents, and if you don't comply then they go get the documents themselves. If they can't find the documents, then they can come back to you with obstruction or contempt charges, but this is the rare case.
With passwords, the rare case becomes the common case. Enough people are going to suddenly "forget" their passwords that law enforcement and judges are going to roll their eyes and throw the book at anyone who actually forgets a password.
I don't believe it's possible for anyone to prove that someone knows a password. People can forget at any time, for any number of reasons, including trauma.
What's going to happen when police have evidence that I did, at one point, know the extra-super-secret password to some old confidential document that I set up a pgp key to encrypt and promptly forgot about? What about when my harebrained DIY deniable encryption scheme means that I genuinely don't know which of the following hundred-thousand files I know the password to, even though I obviously must know, because I set it up in the first place?
There's no law against being a paranoid doofus.
Let's say that you don't know the password, and never did, because it's not your device. If ordered to decrypt, you just say: "I don't know the password." You don't plead the Fifth. Because you simply don't know the password, and the thought of self-incrimination would never occur to you.
Now let's say that it's your device, and that you did know the password, at one time. But maybe only for a few seconds after you set it, and then forgot to write it down. Or maybe you did that intentionally, to nuke a device before resale. Or maybe you have honestly just forgotten it. I have one or two old drives around like that, so hey ;) Anyway, in that situation, you'd just say: "I've forgotten the password."
But now, let's say that it's your device, and that you do in fact know the password. What do you say? If you plead the Fifth, that's basically an admission that you know the password. Because, as I've said, the thought of self-incrimination would have never occurred to you, if you didn't know it. So you don't do that. You just say that you've forgotten it.
There are, I admit, some concerns with that approach. First, you're lying to an agent, and penalties for that can be extremely severe. So it's your call to make. Also, if an agent testifies that you were using the device when swatted, that claim may seem iffy.
But if pleading the Fifth is no longer an option, what are the alternatives? You can at least claim trauma. And if you're old like me, a ministroke.
Simple: just give the password!
And I'm just a punter.
Is this your opinion or from the article?
Actually pleading the fifth, to a specific question, may have different implications. IANAL.
In what circumstances, where you actually don't know something, would you plead the Fifth? Would you do that, just as a matter of principle, just because they're asking for something that they have no right to ask? That seems like asking for trouble.
I do understand the intent of the Fifth Amendment. To protect defendants from incriminating themselves. And, I believe, to forestall the use of torture.
But now, regarding passwords and access credentials, the Fifth is becoming unworkable. I mean, that Philly ex-cop is still in jail for contempt. And perhaps he actually has forgotten the password to his Apple storage device.
"I mean, isn't it obvious?" That's a common misconception about the 5th amendment. In fact the US Supreme Court has said - "One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances."
Case in point: Detective: "Do you know the victim?" Suspect: "Yeah, we've crossed paths a few times before - mutual friends" Detective: "Do you like him?" Suspect: "Not especially. He always seemed kind of arrogant." Detective: "Where were you Friday night?" Suspect: "I went out with a few friends to the Irish pub at the corner of 7th" Detective: "That's interesting because his body was found about a mile from there. And the body was located roughly halfway between that pub and your apartment."
Oops. Now you're screwed. You've confirmed your knew the person, didn't like them, and was in the area of the murder on the night it occurred. And your language even uses the past tense ("seemed kind of arrogant"). All of this would be used against you.
However, if you're charged, you will asked to take the stand, and perhaps be deposed. I'm not sure that you can keep refusing to speak, without facing contempt charges, unless you plead the Fifth. But IANAL, so ???
My "isn't it obvious" comment was not about the innocent. But rather about someone who is arguably guilty, and knows it, but doesn't want to give that away.
If a person is not the one being charged with the crime they can be required to appear in court and provide testimony but if during the course of testimony they would be giving an answer that exposes any illegal activity on their part, they can take the fifth. A good example of this is is someone witnessed a crime but they were buying drugs at the time when they happened to witness it and they were questioned about why they were at that location at that time and what they were doing there. Answering that question would force an admission of a felony on their part and would expose them to charges so they can legally refuse to answer by citing the fifth amendment. A lot of times this is rectified by being granted immunity in return for testimony since the criminal activity on the part of the person testifying is not usually of significance to the prosecution.
There were other rulings for other individuals for whom the government didn't have the evidence against already and they wanted the device access to give them that evidence. In those cases, as I recall, it was said that a defendant could not be required to decrypt unless the device was crossing the border and was subject to the standard lack of privacy at the border. Otherwise, since they didn't have proof, what they needed was the "content of his mind" and that was privileged. As for the border, they might not even be able to require decryption if you are a US citizen. They might demand it and even confiscate the device. But if you are a US citizen, you can't be blocked from entry. So they might just keep the device in those cases and allow you in. I can't swear to the accuracy of that one, though. But I'm pretty sure that's mostly correct. Non-citizens can be turned down at the border for pretty much any reason, including refusal to submit to searches and other privacy-related issues.
Or at least, I didn't realize that they had valid independent evidence of that. As I understand it, they had data from a hacked version of the Freenet client, showing that his node had received pieces of child porn files. They knew that because they were serving those files, and could identify pieces by hash value. Their expert testified that, contrary to claims by the Freenet Project about random routing of file pieces, they could determine that the defendant's node was in fact the recipient, and not just a relay. But, according to the Freenet Project, that's bullshit, which is based on a misunderstanding (perhaps intentional) of the Freenet protocol and mechanism.
I wonder whether they have other independent evidence that's actually valid. But these are subtle points for a judge. And I'm guessing that the defendant doesn't have the expert muscle to dispute those claims. And/or that juries could follow any of that.
Face ID is also hard to "forget" :-)
You can also hold the power and volume up buttons for five seconds on the iPhone X.
It contains a year or so's worth of journal entries, so I keep it around in case inspiration strikes, but so far I've had no luck opening it.
Were I investigated for a crime, it's not implausible that the police might take my hard drive and come back saying something like "here's a list of encrypted volumes we found, open them", and in at least that one case, I simply cannot.
face id is something you have but is not very secure in compelled situations which does not have to mean police.
Q: What's your password?
A: I have no idea.
Q: How do you log into computers then?
A: I'm going to invoke my right to remain silent now, thanks.
[I am under no illusion that this actually helps the compelled decryption situation]
Of course you cannot take back what escaped your mouth prior to asserting for right to remain silent.
It's also useful to be able to leave the physical key at home, or with another party.
... and if you hand it to your attorney, does that count as privileged communication?
I use my password manager to save things that are not passwords too- padlock combos, combo to my safe, medical info, parents wills, banking, all my dirty secrets... Seems wrong they could get access to all my info if the warrant is just for Xyz.
It doesn't really matter if the process fails, it would just be nice to regain access, and it would be interesting to learn how to do it.
Does it boot on its own, without entering a password?
I'm on the wrong side of the ocean, alas, but I'm betting this won't be too hard to crack.
It does have FDE, and requires a password on boot for that.
If so, just take the disk out and plop it in another machine and-- you're done.
If not, then no cold-boot attack can possibly work.
You know that, I suppose. You'll have to crack it by using FireWire or a similar method that lets you read/alter memory, or by opening it up and connecting probes directly to main memory. I have no problem telling you that the latter would be harder.
I certainly would not be able to do either.
This tool could help you, possibly.
I know this doesn't address your comment head-on (i.e lost password) - but it does address the issue of stolen phones which are apparently impossible to restore back to their factory settings.
Most people who rob iPhones are not technically savvy, but they know people who are, and they get those people to debrick the phones.
The real question is: who are these people who can unbrick iPhones?. Well it turns out: all you need to do is look on your town noticeboard and there are a slew of people who claim to 'unlock' or otherwise debrick iPhones.
Typically the tech they use to debrick the phones is readily available on the web, and god knows what other things they do to the phones once they are 'market ready' and ready to be sold (malware implants, either accidental or deliberate can be found on these devices).
I know from experience and know a few people in those circles who deal with stolen phones all day, everyday. There are also firms who demand proof-of-ID so that stolen phones can be tracked and tied back to an individual. The firms that don't require ID have something to hide (they typically ask for no ID and happily sell you a stolen phone for a cut price).
My guess is that some information is stored in the brain chemically in few brain cells, and when they're gong, it's gone.
I tried to brute-force it using John The Ripper, but after a few hours trying to configure it with a dictionary, I just gave up. I'll need to get back to it some day !
The example I was always given to point out the need of such a right is the police saying, "Alright, show us where you buried the body." And if they can "prove" that you buried the body but you cannot actually take them there because you didn't bury the body then you go to prison forever.
The government should not have the power to go on a fishing expedition through my device. If the government can already prove that something illegal is on my device, then they do not need that thing in order to convict me of a crime. It is just superfluous to compel me to do things and it is dangerous.
I often say that Franz Kafka was not a littérateur, but a crown witness (he indeed studied law).
However I am not very optimistic that this line of argument is going to fly. Why do you need to search my car for illegal drugs if you can't already prove that I have them? Why do you need insight into my finances if you can't already prove that I am evading taxes?
As long as we, in principle, give the legal system a mandate to investigate crimes, there is always going to be a point where arguments around reasonable suspicions are going to prevail against privacy concerns. Ultimately I don't think it's realistic to hope to create a comfortable relationship with a malevolent judicial establishment by adding some hoop or other for them to jump through before they get to fuck you over.
The law already imposes those requirements, in theory. A warrant should only be issued, according to the US Constitution, if evidence is presented to a judge that it's more likely than not the search authorized by the warrant will find evidence of a crime. That usually means a non-consensual search is only allowed when there's already significant evidence of guilt.
If that sounds like a fairly high standard, you're right. It was intended to be. If it sounds like a higher standard than is often used in practice... well, you may be right about that too.
It is akin to cops wanting to measure a car's speed by directly accessing the data from it's speedometer. That may be far easier than hiding in a bush with a radar gun, but so is the price of constitutional rights.
I'm also not sure if I want the government installing cameras in all public spaces so they can, uh, catch speeding cars and definitely do nothing else, maybe uploading car telemetry when you're on public roads is an okay price to avoid that.
I very much want to end up in a world in which they have to contend with the rest of the computer industry's efforts to secure systems. That's a world in which a few high-profile targets might have to worry about having zero-days burned on attacking them, but most people are safe.
The solution is to push back on everything because they never yield power unopposed.
Not only that, it assumes you know something you may not. There is video of you digging a hole, that doesn't mean you know where it is. Someone else was driving while you were sleeping, or it was some time ago and you don't remember.
What happens if you legitimately can't remember your password?
And it becomes a method of punishing anyone arbitrarily. Just keep asking questions until you find one they don't know the answer to, then throw them in jail indefinitely for not answering it.
On one hand, it's true that where in the past most people would have sent letter and kept physical record books that could be siezed, the modern equivalents are often encrypted.
On the other hand, modern phones don't only contain the letters and records someone in the 1970s would have kept. People have GPS location records, records of things they've read, heart rate monitor records, naked photos of their lovers, and all the credentials needed to empty their bank accounts.
There is also a change in scalability; while in principle monitoring on 0.01% and on 99.99% of the population may be equivalent, in practice a quantitative difference of so many orders of magnitude is quantitatively different. In the 1970s, trailing someone everywhere was so expensive large-scale monitoring was impossible, and rules to keep tabs on the impossible weren't needed. In the modern age, the costs have dropped to a fraction of a penny, but the protections against abuses haven't kept pace.
Achieving a reasonable balance will be difficult.
The problem is with overly broad warrants, that allow for whole device imaging — though we sometimes see that with real warrants too, which just grab everything.
Are we to believe that typing it in the presence of officers of the court doesn't communicate the password to officers? This seems questionable. I'm sure judges love, technically we are violating your clients rights but as long as officer smith looks over that away we TECHNICALLY wont be.
Further one can argue both having forgotten a password AND the fifth amendment. You can argue that the act of trying to unlock it is testimonial AND that you don't know the password. Prove them wrong.
You could argue that the authorities have presented you with a device that has had the password changed. If they actually do this do they just get to lock you up for however long they feel like?
It's probably true in many cases that you can establish that a device was used by a person, bought by a person, that that person PROBABLY knows the password. This isn't enough for it to be a foregone conclusion.
This reads like complicated wishful thinking designed to relieve the prosecution of the burden of doing intelligent police work.
I am strongly against compelled decryption, but haven't come across this argument before. I think it's a brilliant point.
In this particular case, there is a fear that one could get a severe sentence (e.g. capital punishment) without having even committed a crime, all due to the police changing their password. If a person is afraid enough of that (unlikely) potential outcome, they may ignore statistics all together and follow their fear.
For more examples of how much people ignore probability, consider https://money.cnn.com/2017/08/24/news/economy/lottery-spendi... and https://www.quora.com/How-much-does-a-casino-make-daily
"You could argue that the authorities have presented you with a device that has had the password changed. If they actually do this do they just get to lock you up for however long they feel like?"
I interpreted that quote to be used as potential horror story that could be created by compelled decryption. As such, the fear that story creates could make it used as an argument against compelled decryption ("if a court can compel you to decrypt your files, then $HORROR_STORY is possible! We need to all fight against compelled decryption!").
A good number of people will get behind that argument, even though (as you said) that argument depends on an "unlikely logical possibility". And those people using the fear of that horror story to dislike (and maybe even rally against) compelled decryption is what my point was about.
As an observer it seems to me as if law enforcement agencies are lazy and believe that investigation of crimes should be simplified by ubiquitous use of technology rather than frustrated. But technology is a tool which serves its master, and as long as users remain the master of their technology it will serve their interested and frustrate other actors.
Police investigations don't need to rely on access to this technology and can be pursued through the same methods they have been for centuries.
Suppose a child discloses to a teacher that their father raped them and filmed it on his iPhone, specifically what actions would you take as a detective tasked with that case?
In most instances the perpetrator wont have obligingly kept evidence for you. This is something like the scenario in which we defend torture by positing a ticking time bomb scenario.
Sure we want to break the terrorists fingers and lock away the pedophile until he brings forth evidence of his evil deeds but that doesn't make it it a good model to arrange our life and laws on.
Logically you would secure the child so he couldn't come to harm. Interview him, interview the perp, other family members, other adults who interacted with the child say at school. Have a therapist/psychologist analyze the child's behavior.
If you believe you need access to the phone/computer you could seize it while its unlocked, attack their phone, attack their home computer and use it to attack their phone, plant a bug/physically surveil them.
In cases where it was vital cops seem to have been able to do this so far. They just wish they could do it more easily.
This isn't a counterargument for why phones/computers should be considered a special case exempt from a search warrant. The inability for the door to be jimmied doesn't make the car deserving of a special exemption.
"An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password."
On the surface it almost looks like it argues for the opposite position by using the "Always do A unless exceptional conditions are met" form, but then guts that by making the "exceptional" condition pretty damn trivial.
Say your encrypted files need two secrets, one in your possession, one in possession of a third party.
To decrypt your file, use your secret and ask the third party for their secret. To get their part of the secret, either call them or type a password or use some other private key. It can be automatic and fast.
The role of the third party is to block the secret retrieval at any suspicion of law enforcement involvement. Second secret then cannot be retrieved and the files are safe.
Also, if you type the wrong password, the third party blocks retrieval and will reactivate it after investigating whether you are in law enforcement company.
Law enforcement may try to compel the third party to give the second secret. Having third party in another country, or multiple third parties in multiple countries may solve this.
Another idea is that the third party is your lawyer. You shared that second secret with your lawyer and told him to stop sharing or destroy the second secret if you ever meet law enforcement.
You get arrested, stay silent, your lawyer is called; before anything else the lawyer blocks retrieval of the second secret. This may be attorney/client privilege and would block law enforcement from compelling the lawyer to give the second secret.
Add some randomness (retrieval of second secret gets blocked with probability 1/10 when the correct password is entered) to get plausible deniability.
Some people could be interesting to pay Apple a lot to implement this. Or some law firms could start selling such lawyer phones.
Edit: typos, last sentence
Then that isn't your lawyer; rather your co-conspirator.
I'm pretty sure that if you're in a conspiracy with your "lawyer", you'll be charged together and you'll need another actual lawyer to represent you.
Old-school though experiment- I encrypt all my paper notes using a simple substitution cipher. They seize my notes and have full physical access to them. If they don't understand my notes can I be forced to explain my cipher?
If I comply and the unscrambled contents are "RedFalcon has delivered the ApplePie to the EndOfTheRainbow". This is basically another substitution cipher. Can I be forced to explain this under threat of jail if I don't explain it in a way they accept?
I realize modern encryption is way beyond this, and way beyond my understanding. Has the basic principle of access vs understanding changed?
US civics-class-takers will naturally remember learning about how the first ten amendments to the constitution are commonly referred to as the "Bill of Privileges".
We all agree that we shouldn't be compelled to testify against ourselves. Right?
Ok... now let's think of Geordi La Forge.
Were he to commit a crime, could the government compel him to produce encrypted recordings from his visor?
And hopefully you'll come to the conclusion, "No, because that visor is part of him. He shouldn't have to give up his sight just to maintain his ability not to testify against himself."
And from there it's just a few steps towards, "Yes, I do need my cell phone to be a productive human... and yes, tech I need to be a productive human should be covered under the same protections as I am."
Plenty of other ways for cops to catch the bad guys.
Who said so? UN? Some Constitutions? Who?
* Encryption: A Matter of Human Rights || https://www.amnestyusa.org/reports/encryption-a-matter-of-hu...
In the U.S., one can make an argument that the Second Amendment protects the right to encryption.
But even if no constitution or law in the world protects a right, it's still a right — just a right without legal recognition.
I wouldn't. Arms helps you kill or hurt people. Encryption hides information. Both functions can be used as a means to protect yourself, but its really a stretch to compare arms and encryption. Da-Vinci's mirror writings were as comparable to a rapier than AES-CGM is comparable to a hand gun. That is, not at all in my opinion.
As a citizen, I would argue that the right for encryption is closest to freedom of thought. My private thoughts don't have to be confined to my brain, I should have the right to memory prosthetics (I mean a computer) as well.
(Edit: of course, the decision to classify encryption as munition was ridiculous. How it combines with the second amendment (which I happen to mostly disagree with), is just a fortunate coincidence.)
One can speak, publish, make weapons, be quiet, associate, ... and encrypt, all without asking or compelling others first.
Rights are natural, existing without someone else saying so.
I'm not an expert, but I'd note that Fisher Vs. United States which gets brought up several times was about the accused individual's lawyer producing documents the individual had given them. And a large part of the judgment in the case is the difference between ownership and possession (as seen in the decision of couch vs. united states which it relies on).
In any case fisher said that you couldn't be compelled to testify to affirm the truth of the contents of the documents sought and that the password would decrypt them. But decrypting files is affirming a truth in the documents sought, as the government lacked testimony of their encrypted existence on that hard drive and of the passwords ability to unlock them.
Suddenly, every chunk of 0's and 1's in the hands of an unscrupulous/ambitious/pressured prosecutor becomes a ticket to indefinite incarceration.
For every criminal this practice may help collar, I see too much potential for and utility as a form of political and civic suppression. Someone being problematic? Have the geek find evidence of what might be an encrypted volume and order the problematic person to supply the keys to open it. Presto. Enjoy your time in the Klink.
You can't let such harmful precedents stand. Heck, who is to say someone doesn't just write a worm to create small encrypted caches on everyone's machine? Does that then put everyone in a Spartacus situation?
This is dangerous ground in which the courts are treading, and no less than 2 Constitutionally defined rights are in conflict.
Personally, I prefer a system with maximum difficulty with regards to the cessation of Rights. A government empowered to ignore your Rights is well on the road to hell. There is a balance somewhere, but I am at a loss as to where it is at the moment. Where ever it is though, it isn't on indefinite cessation of freedoms just because the State has a hunch there might be something relevant they can't read.
Just describe who that is, and why it is relevant to mention it.
I could have linked the Wikipedia article, but that's getting pretty close to LMGTFY, no?
An encrypted file cannot, assuming a suitably complex password.
So require proof that the file is not decryptable by other means before you can compel entering a password ;)
You can’t take the fifth before a grand jury. I think there is a certain presumption that the actors are gentlemen that the law assumes. If you feel really strongly about that sort of privacy, you’d be well served to not find yourself in a criminal court trial.
There is both ambiguity and case law here.
If I have a locked container that belongs to my dad, don’t have the key or combo because he is incapacitated, am I a criminal for not giving the police they key and combo?
The police can have a reasonable suspicion that something is in that box, why should that make me a criminal?
The law enforcement argument is "That is ridiculous, the suspect entered the password 50x a day until we seized the device". (And they are probably correct) But justice is supposed to be about "beyond a reasonable doubt". As a juror, I couldn't convict someone of a crime because he asserted that he does not remember a fact.