Fifth Amendment shields child porn suspect from decrypting hard drives
arstechnica.com
arstechnica.com
My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.
You have to take what you see in the news in context of the reality of the people who work within the system every day. It is a system, after all, and systems involve balancing competing interests, but the tech media rarely tackles the complexities of that process.
People who clerk have a skewed view of the judicial system compared to someone who has been convicted.
No they don't, just a different one. Read a lot of appeals and it's obvious that a lot of the arguments are completely, utterly bogus. There are technicalities that are unfair to people who are appealing, like having appeals rejected for failure to timely file when the appellant didn't have access to admissible evidence in time to file, and so forth. Those are the kind of cases that tend to work their way up through en banc review and onto the SC eventually.
But a lot of other appeals are so ridiculous as to be desperate or amount to judicial trolling. The fact is that some prisoners have nothing better to do than file appeals to make the time go by faster.
I'd argue it's a much less biased view that incorporates more and better information.
I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.
The bulk of nearly any judge's case load is criminal appeals from run of the mill criminals. They might be pro se, they might have a public defender, they might have a cheap local lawyer, but they're not deep pocketed by any means. Indeed, clerks see a skewed picture of things, but one that is if anything skewed towards seeing fewer actually guilty people, not more, for the obvious reason that actually innocent people are more likely to file an appeal than actually guilty ones.
> I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.
The purpose of the criminal justice system is to protect the law-abiding public by putting criminals in prison. That is its sole reason for existing. An important constraint in doing so is protecting the innocent, but that's not its purpose. If it were, then you could design the perfect justice system simply by never putting any people in prison. But the world has bad people, lots of them, and that's not a tenable option.
You design a justice system the same way you design any system. You pick a false-positive rate you can live with, then design the rest of the system to maximize throughput while still hitting that false-positive target. It's the only sane way to design something that works as opposed to a non-working platonic ideal.
Good. Better criminals abuse the system than the system abuse people.
> My friends who have clerked for judges talk about how frustrating it is to deal with appeal after appeal from people who are clearly guilty and just abusing the system.
I don't trust your friends view of clearly guilty, sounds like bias to me.
That's a trope. In reality, the justice system is about striking a balance between the need to preserve order and security and the need to protect peoples' rights. That's why the Constitution uses "balance-y" words like "reasonable" when talking about 4th amendment rights.
> I don't trust your friends view of clearly guilty, sounds like bias to me.
I'm sorry to break it to you, but most people the police catch are "clearly guilty." Even my PD friends acknowledge that most of their clients are "clearly guilty" (they see their jobs as more watching out for the ones that aren't and making sure the ones that are get at least a proportionate punishment). The media likes to cover edge cases, but for every one of those, there are a dozens of people who rob a liquor store and leave video evidence of themselves doing it.
It is interesting to note that even most of the cases that are central to defining 4th amendment rights, ones where judges have come down in favor of the defendant, are nonetheless ones where the defendant did actually commit the crime he was accused of committing. Ernesto Miranda was convicted the second time around, for rape, even with his confession excluded, served time, and was ultimately killed in a bar fight.
"No person shall be...compelled in any criminal case to be a witness against himself..."
Nothing in there about being "reasonable" or about being "clearly guilty." The 5th amendment makes exactly one exception, which applies only to the military, only during a time of war or danger to the public, and has nothing to do with self-incriminating.
Second, even in the absence of wiggle words, there is the issue of how broadly to interpret the protection. Read literally, the text only prohibits "compelling" a person "to be a witness against himself" (i.e. a compelled confession admissible into evidence). Extending the protection more broadly than that is an act of judicial balancing.
Laws change, and there are often subtleties to a law that make rash statements made by some PD friend with likely no more than a GED about "clear guilt" absurd. Even the simplest of laws aren't clear when looked at in detail.
This is why we have advocates with specific knowledge in these areas, and why judges hear briefs explaining the nuances of law, as it applies to a case. There just is no such thing as "clearly guilty"
Nobody is acting as judge and jury. PD's are charged with zealously representing their clients just like any other lawyer, and the ones I know are extremely committed to their jobs (many turned down six figure jobs in private practice to work for state government salaries and defend poor people). They fight hard for their clients, even the "clearly guilty" ones. But that doesn't mean they're not allowed to make observations about the nature of the world.
> Laws change, and there are often subtleties to a law
We're not talking about subtleties here. We're talking about people who rob a liquor store, have people see them do it, have video evidence of them doing it... That's the bread and butter of the criminal justice system.
When you see edge cases in the news and rant about how broken the system is for not taking even more measures to protect the innocent, remember that the vast majority of people who go through the justice system really did do the crimes they're accused of committing, and that factual state of affairs influences how the system is structured. If a lot more of the people who come up before judges each day were innocent in fact, the system would be structured differently.
PD here means "public defender": a lawyer. Did you perhaps think it meant "police dept"?
The trope here is the suggestion that criminals are getting off on technicalities. As you've illustrated with Miranda, even with the improperly-obtained evidence suppressed, he was still convicted. The government doesn't need to violate people's rights to keep criminals off the streets. And perhaps there would be fewer of those pesky appeals if the state did things right the first time.
Of course most 4th amendment decisions concern guilty people - the remedy for 4th amendment violations is suppression, so you never hear about the innocent people who are harassed by police with illegal searches - no evidence is found so there's no case with evidence to suppress! (Civil action is an uphill battle even for those who are able to bring it.)
It's not a matter of protecting the rights of guilty people or not, but determining how much to protect them. Every procedural protection has a cost. If a procedural protection might be invoked by a person who has a 10% chance of being innocent, then maybe it's worth the cost. If it's more likely to be invoked by a person who has a 1% chance of being innocent, then maybe it's not. Looking only at media reports gives you a distorted picture of what those probabilities are.
> The trope here is the suggestion that criminals are getting off on technicalities.
I didn't say they were getting off on technicalities. I said they were trying to get off on technicalities.
"Better to let a 100 guilty men go free than 1 innocent man go to jail" makes for good rhetoric, but even such flowery language implies a point at which its better to let 1 innocent man go to jail than let a certain number of guilty men go free.
BTW 99% is a very low accuracy. If we accepted that for aircraft, 13 would crash weekly.
I'm sorry to break it to you, no they aren't; and I was a cop. Most cops don't give a rats ass if you're guilty or not, only if they get a bust, they're chasing numbers generally handed down unofficially through their supervisors and they have targets to hit. They care only that can bust you, not that they should or not and quite often ignore anything that might prevent them from getting a bust.
All cops; no, but a majority in my experience. I became a programmer because I couldn't stand being around them or socializing with them because they really are mostly dumb fucking pigs who don't give a shit about your rights.
[1]: By the way, if you get called for jury duty do not try to get out of it! It's an incredibly interesting and rewarding experience, not to mention the whole thing where it's your duty as a citizen.
People like stories and laws are slowly eroded by scary stories. Joe-Smith-child-pornographer and Molly-Johnson-the-terrorist cases are brought as examples of the evil of encryption and anonymity. It is very easy, the script is always the same.
Again not saying there is top down shadow conspiracy to all this just how the constraints and incentives are set up these things emerge as a result.
We can only hope that if this suspect is guilty, they find evidence that can be obtained without violating his rights ... and of course if he's innocent, I hope he avoids the stigma being a suspect might bring.
That's in my head, despite the fact that I am well aware that he could be taking a moral stand, or he could have stuff on those drives which he doesn't want to be seen for reasons completely unrelated to child pornography (maybe photos of his mistress which his wife doesn't know about, maybe profit spreadsheets from his drug-dealing... etc.)
So if he is innocent, I imagine the stigma will be there regardless, assuming people hear about the case at least.
No, that's the responsibility of prosecutors. Trial courts are 'finders of fact,' whether or not those facts suit the prosecution.
You can lead a horse to water, but you can't make him drink.
Regardless, we could have shortened this thread considerably if you'd just said "eh, whaddya gonna do?" up front.
I said 'a lot of people are authoritarians,' not that it was inherent. It varies from country to country, eg I think Swedes are somewhat less authoritarian than Americans in the aggregate.
You can be compelled to testify under oath for many reasons none of which involve doing anything wrong. When you testify under oath, you must answer the questions asked truthfully or face unlimited jail-time for contempt.
The fifth amendment is the only form of protection you have from being called to testify and being grilled about any random topic. It's a balance to the otherwise tremendous power that a court has.
The prosecution must be able to make their case without the defendants assistance. This is a fundamental aspect of our legal system.
I think precedent leaned this way precisely because people understood that otherwise, guilty people would definitely walk. And they couldn't have that, even if it meant that the spirit of the 5th amendment was violated.
I had a idea about how to make this type of punishment non feasible.
Replace the standard truecrypt bootloader with one of a design that has a 'self destruct'
What I mean by that is, when you turn on your computer and the boot loader is initialized it actually deletes its keyfile from disk and only keeps it in ram. If you dont enter the correct password in xxx minutes or if you restart the computer, that data is lost and restoring it becomes impossible.
There could be another option as well, a 'extra' unlock code that you could not prove the existence of, which could overwrite the deletion of the above.
Basically its a way to say "The FBI turned on my computer without asking me for instructions and destroyed my data- Its not possible for me to restore it, but this WAS my password"
Even on a 'normal' computer, there is likely minimal benifit to booting normally as a first step; because you will likely run into an OS password. The simplest thing (I guess) is that they routinely remove the HD, clone it, and look at it on another computer, then probably remove the user password and boot it to see what the user would see.
I think that the only way to do it would be to have something like a fully RAM disk, that is erased when power is lost. But this is problematic because of power outages, so you would be tempted to use battery backups or something, which would in turn make the system transportable, and more likely to not be deleted.
I guess in the case of the article, it was TSA agents, so your proposed system could do the trick with incompetants.
"Unencrypt that." "No longer possible."
Whether I'd have backups somewhere, well, who knows. But it's certainly possible to imagine systems under which the likely actions of an attacker such as the police would render the files useless.
A) Are the encrypted files actually evidence of an offence -- without decrypting them how can that argument be made?
B) Do you encryption keys count as evidence if the passwords in your head don't, and if the passwords in your head do count as evidence then how can not handing them over not count as obstruction of justice?
C) Is there a more general case that can be made such as you don't have the requisite mens rea to be guilty? I believe the terms go something like:
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."
If you just have a general commitment that you're not going to turn something over if under duress, does that count? And, if you can't do it and actually are guilty, is obstruction going to get you a lesser penalty anyway?
I imagine this is why encryption doesn't count as obstruction, since you have a general commitment that your stuff be difficult to read by anyone, rather than a specific grudge with the police.
By way of mitigating your risk, you might even be able to tell the police, in recorded interview, that you needed access to a computer in the next - whatever time period - to preserve the evidence that will prove your innocence. I doubt some low-level investigator, who probably doesn't understand the first thing about computers, is going to get you access to a computer in a reasonable time-frame, so by the time they've decided one way or the other it will be too late. I don't know how interview recordings work out in terms of evidence that the defence has access to though.
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It's really something I suspect you'd have to talk to a local lawyer about if you wanted a reasonable answer.
Of course, this would protect me if I happen to have encrypted hard drives scattered randomly around, but that's not typically how one would store data.
Obviously all these things would need to look like they were genuine rather than thought-up for legal purposes, so I imagine if I ever ended up in this situation this comment might act against me... but as a non-American, the fifth is unlikely to be relevant anyway. On top of the fact that I currently have no encrypted drives.
Even without circumstantial suggestions that there are multiple options, I wonder if you could simply make the argument that possession of a single encrypted drive does not indicate usage of said drive, and therefore there is no reason to believe you have access to the encrypted contents?
The way I understand it, I have plausible deniability that I have any encrypted data on this disk. Failing that, wouldn't being forced to divulge which of the partitions are actual encrypted volumes be self-incrimination?
The best approach I have heard is to have 2 TrueCrypt volumes, but claim you only have 1. You still have to be careful about data leaks, and making your 'one' look convincing.
Also, yes, you cannot be forced to give them your decryption keys.