Slightly older news: Judge trying to force woman to decrypt her hard drive

[senseamp]

I think a lot of people are misinterpreting the 4th amendment in the context of this case.

The problem here is that they already have her on tape stating that there is evidence on the laptop. If she had never confessed to such, she would have never had to give out the password.

It's a fifth amendment issue, not fourth. She has the right to remain silent.

 

[PokerGuy]

What a horrible idea this is. What if someone actually truly forgets the passphrase to something and the police demand the password? They get tossed in jail forever, since they have no way of proving they forgot something? It's absurd. If the feds can break the encryption, that's fine, use whatever evidence they find. If they can't, there's no way she should be forced to (possibly) incriminate herself.

 

[PingSpike]

It seems entirely plausible a person could in fact forget the password to an encrypted disk.

 

[Rebel44]

Good solution for this has TrueCrypt - hidden volume. Give them normal pasword which will unlock HDD, but you will se only harmless crap. Presence of hidden volume cannot be proven - and thats where important things should be stored.

 

[Juddog]

It's a fifth amendment issue, not fourth. She has the right to remain silent.

She already gave up that right when she admitted on tape that the evidence was on the drive.

 

[cybrsage]

They have a warrant for a hard drive. They have the hard drive. They have what the warrant was for. If they can't use it, that's their problem.

Untrue. That is like saying a cop does not have to be able to search the inside of a car when they obtained a warrant to search the car.

They obtained a warrant to search the hard drive, so they need access to the drive to search it.

Do you believe that somebody should be compelled by a warrant to incriminate themselves?

All warrants do this, as they give the police the legal right to search your stuff. You are not allowed to stop them. Encrypting the drive stops them, something which is not allowed.

 

[BoberFett]

Untrue. That is like saying a cop does not have to be able to search the inside of a car when they obtained a warrant to search the car.

They obtained a warrant to search the hard drive, so they need access to the drive to search it.

Wrong. You're not even drawing a proper analogy. With a warrant to search the car, they are allowed to search the car. They are not allowed to force you to tell them why there is blood on the bumper. That's up to them to find evidence.

All warrants do this, as they give the police the legal right to search your stuff. You are not allowed to stop them. Encrypting the drive stops them, something which is not allowed.

Wrong. They have the hard drive. They can do whatever they want with the data drive. If getting the information they want requires something from the mind of the accused, that's coercing them to incriminate themselves and unconstitutional.

 

[ShawnD1]

All warrants do this, as they give the police the legal right to search your stuff. You are not allowed to stop them. Encrypting the drive stops them, something which is not allowed.

So if the police have a warrant to search my house and I don't know where the key is, they can just hold me in jail forever? Cool. This is why I don't ever want to visit the US again.

 

[cybrsage]

So if the police have a warrant to search my house and I don't know where the key is, they can just hold me in jail forever? Cool. This is why I don't ever want to visit the US again.

If that was the only means of entry, then yes. We all know she did not "forget" the password to the computer she was using shortly before they took it from her.

 

[the DRIZZLE]

Wrong. They have the hard drive. They can do whatever they want with the data drive. If getting the information they want requires something from the mind of the accused, that's coercing them to incriminate themselves and unconstitutional.

They can force you to open a locked safe. You may disagree with that precedent, but that's the law. If they know you own a gun they can get a warrant and force you to produce it and they can do the same with your blood.

 

[PokerGuy]

If that was the only means of entry, then yes. We all know she did not "forget" the password to the computer she was using shortly before they took it from her.

Oh, so now "we all know she did not forget" is the legal standard we should use to determine whether to indefinitely throw people in jail? Interesting.

Hey, we all know you're a criminal, to prison with you! Forget those pesky trials or evidence.

 

[the DRIZZLE]

Oh, so now "we all know she did not forget" is the legal standard we should use to determine whether to indefinitely throw people in jail? Interesting.

Hey, we all know you're a criminal, to prison with you! Forget those pesky trials or evidence.

People have been held in jail for years for contempt for refusal to testify. If you lie under oath and say your forgot they could charge you perjury but they would have to prove you were in fact lying.

 

[BoberFett]

They can force you to open a locked safe. You may disagree with that precedent, but that's the law. If they know you own a gun they can get a warrant and force you to produce it and they can do the same with your blood.

Huh, I forgot the combination. How about that.

 

[BoberFett]

People have been held in jail for years for contempt for refusal to testify. If you lie under oath and say your forgot they could charge you perjury but they would have to prove you were in fact lying.

Refusal to testify against themselves or others? Giving up a password is testifying against yourself.

 

[Patranus]

How about she says she simply "forgot" the password?

If she is asked if the was a lie, she then can plead the 5th under any interpretation of the amendment as forcing her to state that she lied when she "forgot" the password would incriminate her in other crimes.

 

[ShawnD1]

How about she says she simply "forgot" the password?

If she is asked if the was a lie, she then can plead the 5th under any interpretation of the amendment as forcing her to state that she lied when she "forgot" the password would incriminate her in other crimes.

You would make a very good lawyer

 

[tommo123]

as said above - true crypt and hidden volumes. simples

as far as this case goes, she's a criminal and she should be punished but in this case - it's the lesser of 2 evils. better she gets away with it than this kind of bullshit being allowed to fly.

 

[the DRIZZLE]

Refusal to testify against themselves or others? Giving up a password is testifying against yourself.

For example if the police got a warrant to take your fingerprints and you refused a judge could put you in jail until you complied.

 

[BoberFett]

For example if the police got a warrant to take your fingerprints and you refused a judge could put you in jail until you complied.

OK, they can get your physical fingerprints. They cannot however force you to tell them at which crime scene they can match those fingerprints.

"Now that we've got your fingerprints [hard drive] tell us where the murder weapon [password] is so we can build our case."

 

[Gooberlx2]

Refusal to testify against themselves or others? Giving up a password is testifying against yourself.

Well, that's exactly what the ruling is about. The judge disagrees, and the article mentions what I think is a shitty example with wire tapping. Instead the safe example is much more analogous in the sense the she is being compelled to provide a key or combination.

The defendant isn't admitting any crimes or otherwise being a witness against herself at all here. The evidence on the HDD may/will do that work.

If it was illegal to encrypt one's HDD, then she could plead the 5th because having/revealing knowledge of such a password would implicate a crime. ...but it's not.

If she wants to say she forgot the password and then plead the 5th on a perjury charge...that's a whole different issue.

 

[airdata]

as said above - true crypt and hidden volumes. simples

as far as this case goes, she's a criminal and she should be punished but in this case - it's the lesser of 2 evils. better she gets away with it than this kind of bullshit being allowed to fly.

Allegedly a criminal, or has she been convicted of anything?
I just don't get how the police don't have a forensics unit competent enough to do it themselves.
Derp... we seized their computer but it's password protected!!! ( yes i know it's encrypted, just making a joke )

OK, they can get your physical fingerprints. They cannot however force you to tell them at which crime scene they can match those fingerprints.

"Now that we've got your fingerprints [hard drive] tell us where the murder weapon [password] is so we can build our case."

That is a fitting analogy.

 

[Juddog]

This is the equivalent of having someone in jail, that has a huge safe.

They hear the person confess that the "smoking gun" is in the safe, have it on tape, and then ask the accused to open the safe. The accused refuses, and they hold them in contempt.

There is already a legal precedent for just this thing. When the cops have a warrant and have the accused saying on tape that they have the evidence somewhere, they have the right to force that person to open the safe / unencrypt the drive, etc..

Had the suspect in question kept her mouth shut, then they would have never been able to force her to unencrypt the drive.

 

[cybrsage]

Oh, so now "we all know she did not forget" is the legal standard we should use to determine whether to indefinitely throw people in jail? Interesting.

Hey, we all know you're a criminal, to prison with you! Forget those pesky trials or evidence.

DO you seriously think she "forgot" the password to the drive she routinely used?

Seriously?

 

[Fern]

hmm is the penalty for not decrypting it worse then what she will get if she does? that is a hard choice.

but im torn on this. on one hand they have a warrant to search it. but it seems like a fishing expedition. they have no clue what is on the drive but think it might have something on it that will nail her. I would think then that if she does it for them she is breaking her Fifth Amendment rights.

this needs to go before the SC.

First I must admit I have not read much about this, but at this time I agree we have a conflict with a warrant and the 5th. So yeah, take it to the SCOTUS.

Fern

 

[Fern]

They can force you to open a locked safe. You may disagree with that precedent, but that's the law.
-snip-

Can they make you tell them where the safe is hidden?

Fern