Originally posted by: Nothinman
I'm sure Customs is stuck with just that action because they don't have a warrant, if a search warrant's already been issued that means they have probable cause to think you've commited a crime and if the data on your computer might be relevant to that crime you'll either produce the data or likely be put in jail for contempt of court, obstruction of justice, etc.
I'm checking for some case history. While it might be unreasonable to forget the name of your partner in crime, it's entirely reasonable to forget a long password. I've forgotten my personal Domain password, even though I'd swear it's not possible. People forget passwords all the time and a judge would have to accept that at some point.
Federal Judge rules that prosecutors can't force a criminal defendent to divulge his PGP passphrase.
But Fifth-Amendment rights aside, at some point it'll have to be recognized that passwords can be forgotten. And divulging the name of an acquaintance is NOT the same as allowing the content of your memory to be probed for a key to evidence that might incriminate you.
"Michael Froomkin, a law professor at the University of Miami, has written that the government "would have a very hard time" trying to obtain a memorized passphrase. A similar argument, published in the University of Chicago Legal Forum in 1996, says:
The courts likely will find that compelling someone to reveal the steps necessary to decrypt a PGP-encrypted document violates the Fifth Amendment privilege against compulsory self-incrimination. Because most users protect their private keys by memorizing passwords to them and not writing them down, access to encrypted documents would almost definitely require an individual to disclose the contents of his mind. This bars the state from compelling its production. This would force law enforcement officials to grant some form of immunity to the owners of these documents to gain access to them."
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TrueCrypt discusses "Plausible Deniability".
http://www.truecrypt.org/docs/?s=plausible-deniability
"Plausible Deniability
In case an adversary forces you to reveal your password, TrueCrypt provides and supports two kinds of plausible deniability:
1) Hidden volumes (see the section Hidden Volume) and hidden operating systems (see the section Hidden Operating System).
2) Until decrypted, a TrueCrypt partition/device appears to consist of nothing more than random data (it does not contain any kind of "signature"). Therefore, it is impossible to prove that a partition or a device is a TrueCrypt volume or that it has been encrypted (provided that the security precautions mentioned in the chapter Security Precautions are followed). A possible plausible explanation for the existence of a partition/device containing solely random data is that you have wiped (securely erased) the content of the partition/device using one of the tools that erase data by overwriting it with random data (in fact, TrueCrypt can be used to securely erase a partition/device too, by creating an empty encrypted partition/device-hosted volume within it). However, note that for system encryption, the first drive track contains the (unencrypted) TrueCrypt Boot Loader, which can be easily identified as such (for more information, see the chapter System Encryption). In such cases, plausible deniability can be achieved by creating a hidden operating system (see the section Hidden Operating System)."
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For sure, there's going to be a LOT more encryption of PCs and servers over the next few years and there's going to be a lot more prosecutors demanding passwords.