DOJ: We can force you to decrypt that laptop

MotF Bane

No Lifer
Dec 22, 2006
60,801
10
0
http://news.cnet.com/8301-31921_3-20078312-281/doj-we-can-force-you-to-decrypt-that-laptop/

DOJ said:
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

Apparently, the Fifth Amendment is a troublesome speed bump to the DOJ.

I guess we'll all need encryption programs with a deletion function built in to them.
 

Schadenfroh

Elite Member
Mar 8, 2003
38,416
4
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The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home
...
No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent
Change we can believe in!

I doubt you can force them to decrypt it, amazing how easily people forget passwords and such.

Now, where is my Thermite HDD enclosure...
 

Vette73

Lifer
Jul 5, 2000
21,503
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Please, don’t you know; the constitution only protects corporations.

I bet if it gets to the SC it will be a 5-4 in favor of making them give the key. Scaly, Thomas, etc… would never allow the 5th to protect you, unless you are a Corp.
 

PingSpike

Lifer
Feb 25, 2004
21,758
603
126
Just send them to guantanamo and torture them until they give up the key. Then we can still say our laws are awesome but they don't count down there so its OK.
 

SilentRunning

Golden Member
Aug 8, 2001
1,493
0
76
Please, don’t you know; the constitution only protects corporations.

I bet if it gets to the SC it will be a 5-4 in favor of making them give the key. Scaly, Thomas, etc… would never allow the 5th to protect you, unless you are a Corp.


But with the time it takes for the appeals all the way to the SC one could just happen to forget the decryption key. :sneaky:
 

her209

No Lifer
Oct 11, 2000
56,336
11
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Law enforcement shouldn't be able to make you give up your password. But law enforcement should be able to scour the unencrypted parts of your computer(s) and e-mails to find a password as a result.
 

Craig234

Lifer
May 1, 2006
38,548
350
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The 5th is pretty narrowly about 'incriminating yourself' with communications in an interrogation, to limit interrogation abuse.

It's not simply 'you can't incriminate yourself' at all.

If the police have reason to think you kept a diary of your crime, they can get a warrant and search you or demand you produce it.

If they can show you knowingly destroy the incriminating diary to avoid prosecution, that's a crime too.

So, decrypting a file is pretty similar to producing a diary. It seems like the government is likely to be on solid legal ground, from my layman's opinion.

Edit: I'm having second thoughts about leaning as far towards it being legal. While the government can under certain circumstances compel, say, giving blood as evidence, this sort of thing I'm not that aware of having come up. Usually the police say, 'do you want to give us the key or do you want us to break our way in?' This is sort of on the defense between the 'lock' and the 'compelling information'.
 
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woolfe9999

Diamond Member
Mar 28, 2005
7,153
0
0
Change we can believe in!

Yeah the article says "the Obama admin" so you had to get your swipe in there. The truth is, law enforcement, be it local, state or federal is always on the side of narrower interpretations of the Constitutional rights of criminal defendants, because it makes their job (convicting criminal defendants) easier. That is why we have defense counsel and groups like the EFF and ACLU, to argue the other side, and judges to weigh both arguments and make decisions.

In any event, this is an interesting legal issue. If we're going to analyze it based on past precedent - rather than say, political ideology - then it comes down to the question of whether compelling decryption of encrypted files is more like testimony or more like being compelled to hand over something physical, i.e. your blood, or a key to a safe. I really don't know who has the better part of the argument here.
 

Vette73

Lifer
Jul 5, 2000
21,503
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But with the time it takes for the appeals all the way to the SC one could just happen to forget the decryption key. :sneaky:


Courts will just hold you in contempt forever.

I think there is a guy in jail never convicted but just held on contempt for years as he says he has no money but the court does not believe him. Even a court accountant says he has no money but they did not believe their OWN accountant so the guy is still locked up.
 

woolfe9999

Diamond Member
Mar 28, 2005
7,153
0
0
The 5th is pretty narrowly about 'incriminating yourself' with communications in an interrogation, to limit interrogation abuse.

It's not simply 'you can't incriminate yourself' at all.

If the police have reason to think you kept a diary of your crime, they can get a warrant and search you or demand you produce it.

If they can show you knowingly destroy the incriminating diary to avoid prosecution, that's a crime too.

So, decrypting a file is pretty similar to producing a diary. It seems like the government is likely to be on solid legal ground, from my layman's opinion.

Yeah maybe, but the other side of the argument is that other cases compelling production of evidence had to do with physical things, whereas this has to do with what is in a defendant's mind, making it more like testimony.
 

Vette73

Lifer
Jul 5, 2000
21,503
9
0
The 5th is pretty narrowly about 'incriminating yourself' with communications in an interrogation, to limit interrogation abuse.

It's not simply 'you can't incriminate yourself' at all.

If the police have reason to think you kept a diary of your crime, they can get a warrant and search you or demand you produce it.

If they can show you knowingly destroy the incriminating diary to avoid prosecution, that's a crime too.

So, decrypting a file is pretty similar to producing a diary. It seems like the government is likely to be on solid legal ground, from my layman's opinion.


Whats longer 30years or "destruction of evidence"?

If I had a program like this I put in a 2nd password. The first unlocks the 2nd erases the first password and delates everything on the drive.

Sure DA let my type in my password for ya... ():)
 

airdata

Diamond Member
Jul 11, 2010
4,987
0
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This case really highlights the competency of their computer forensics department.
 

IceBergSLiM

Lifer
Jul 11, 2000
29,932
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So when we have technology to extract memories or data from our brains they can and will have the right to forcefully submit you to that extraction as well. great.
 

Thump553

Lifer
Jun 2, 2000
12,839
2,625
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This is the kind of case Supreme Court watchers love (assuming it reaches that stage). Storng logical arguments can be made for either result. I am not as positive as others posting above that the right against self incrimination applies-it wouldn't apply to any unencrypted records she had, such as business records, diaries, etc. and the government is not asking her to reveal to them the passphrase. Does encryption make otherwise validly seized evidence inadmissible? Is forcing her to enter the passphrase (withouth the government learning it) the same as requiring her to unlock a safe or filecabinet for which the government has a valid search warrant?

My guess is the court is going to order her to decrypt it, but it's a close case legally.

BTW, is this the same case so many had their panties in a wad a few months ago-the SWAT force invasion for what so many wrongfully assumed was a student loan default case?
 

Vette73

Lifer
Jul 5, 2000
21,503
9
0
This case really highlights the competency of their computer forensics department.


No it shows that a good encryption program can't be hacked/unlocked without the password.

NSA/CIA/etc… have sent out warnings that they can’t get into over the counter encryption programs now. Maybe it said it would take decades or hundreds of years, but same point.
 

Craig234

Lifer
May 1, 2006
38,548
350
126
So when we have technology to extract memories or data from our brains they can and will have the right to forcefully submit you to that extraction as well. great.

When you think about it, the point is justice, whether innocent or guilty, so why not?

If the evidence helps better accurately determine guilt or innocence, justice is served.

The point of the fifth was to prohibit abuse in interrogation, not to give a get out of jail free card.

So if that were not a harmful process, wouldn't it be a great step forward in criminal justice?

The normal standards for 'probable cause' would apply.
 

Lemon law

Lifer
Nov 6, 2005
20,984
3
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While I agree that this is a case for SCOTUS, sadly we simply can't trust our current SCOTUS to get it right.

In my mind the best solution, assuming computers were named in the search warrant, would be for the government to crack the encryption key by brute force guessing done by high speed computers. Computers work for cheap, it might take a year or so, but its still far faster than courts works.

And me thinks, if the prosecution can bust the encryption, the evidence on the computer will prove the defendants guilty way past reasonable doubt.
 

ShawnD1

Lifer
May 24, 2003
15,987
2
81
Change we can believe in!

I doubt you can force them to decrypt it, amazing how easily people forget passwords and such.

true dat. My friend put an embarrassing photo on okcupid and he doens't know his password and he also doesn't know the password to the email he used to create that account. He's double fucked. There's no way he can take that picture down.
 

Vette73

Lifer
Jul 5, 2000
21,503
9
0
While I agree that this is a case for SCOTUS, sadly we simply can't trust our current SCOTUS to get it right.

In my mind the best solution, assuming computers were named in the search warrant, would be for the government to crack the encryption key by brute force guessing done by high speed computers. Computers work for cheap, it might take a year or so, but its still far faster than courts works.

And me thinks, if the prosecution can bust the encryption, the evidence on the computer will prove the defendants guilty way past reasonable doubt.


If by "so" you mean decades or longer then yea. Even then it may not get in ever depending on the password.
 

BoberFett

Lifer
Oct 9, 1999
37,562
9
81
When you think about it, the point is justice, whether innocent or guilty, so why not?

If the evidence helps better accurately determine guilt or innocence, justice is served.

The point of the fifth was to prohibit abuse in interrogation, not to give a get out of jail free card.

So if that were not a harmful process, wouldn't it be a great step forward in criminal justice?

The normal standards for 'probable cause' would apply.

The human mind is not a computer. Memories are often wrong.
 

MotF Bane

No Lifer
Dec 22, 2006
60,801
10
0
The 5th is pretty narrowly about 'incriminating yourself' with communications in an interrogation, to limit interrogation abuse.

It's not simply 'you can't incriminate yourself' at all.

If the police have reason to think you kept a diary of your crime, they can get a warrant and search you or demand you produce it.

If they can show you knowingly destroy the incriminating diary to avoid prosecution, that's a crime too.

So, decrypting a file is pretty similar to producing a diary. It seems like the government is likely to be on solid legal ground, from my layman's opinion.

Edit: I'm having second thoughts about leaning as far towards it being legal. While the government can under certain circumstances compel, say, giving blood as evidence, this sort of thing I'm not that aware of having come up. Usually the police say, 'do you want to give us the key or do you want us to break our way in?' This is sort of on the defense between the 'lock' and the 'compelling information'.

You really are unbelievable. If the Bush administration was doing this, you'd be kicking and screaming nonstop.
 

MotF Bane

No Lifer
Dec 22, 2006
60,801
10
0
Whats longer 30years or "destruction of evidence"?

If I had a program like this I put in a 2nd password. The first unlocks the 2nd erases the first password and delates everything on the drive.

Sure DA let my type in my password for ya... ():)

Yep, there you go.

Oops, something broke!
 

ichy

Diamond Member
Oct 5, 2006
6,940
8
81
From what I recall the police can compel you to turn over the key to a safe, but they cannot force you to reveal a combination. It sounds like that would apply here as well.
 

Lemon law

Lifer
Nov 6, 2005
20,984
3
0
The human mind is not a computer. Memories are often wrong.
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IMHO, a meaningless point, I can type in my computer my past day experiences of how I visited the planet Neptune, and all my wondrous experiences as I chatted up the friendly inhabitants of Neptune on a balmy day at 330 degrees Kelvin. That does not make my computer any truthful testament that any one can rely on, as I can later truthfully swear that experience is pure fantasy, nothing but a fantasy, so help me God.

But oh well, on some just rare days, I have these Walter Middy type fantasies and take my marching orders from the author of the Unstrange Phenomena comic strip.

But in closing, anything found on a computer, must match actual real world events before they become credible.
 

GoPackGo

Diamond Member
Oct 10, 2003
6,519
595
126
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IMHO, a meaningless point, I can type in my computer my past day experiences of how I visited the planet Neptune, and all my wondrous experiences as I chatted up the friendly inhabitants of Neptune on a balmy day at 330 degrees Kelvin. That does not make my computer any truthful testament that any one can rely on, as I can later truthfully swear that experience is pure fantasy, nothing but a fantasy, so help me God.

But oh well, on some just rare days, I have these Walter Middy type fantasies and take my marching orders from the author of the Unstrange Phenomena comic strip.

But in closing, anything found on a computer, must match actual real world events before they become credible.

A quote from Prince "If a man is considered guilty for what goes on in his mind, then put me in the electric chair for all my future crimes"

Imagine using one of Stephen King's books to convict him of murder.....