U.S. Court Extends Fifth Amendment to Encrypted Data

[Thyunda]

Well this is just plain silly. What's he got on his hard drive that he doesn't want the FBI to see? He should have been put away for deliberate obstruction of justice. If you're threatened with a jail sentence, and all you have on your hard drive is a couple of embarrassing files, then surely you'd just let the FBI in?

Jesus, more people who doesn't understand how encryption works, nor the law.

First of all, there is a difference between "obstruction of justice" and "refusing to help". Refusing to help police build a case against yourself is not the same as obstruction of justice. You have NO obligation to help them, and giving that helping them is counter-intuitive to your case, why would you?

Second of all, as mentioned in my earlier posts, you cannot beat encryption. Ever. Hidden volumes means that encryption can cheat investigators, and they have no way to prove otherwise.

Privacy is overrated when it starts interfering with the justice system.

The man is innocent until proven guilty. To jail someone for "Obstruction of justice" (even though, as i explained, refusing to decrypt something isn't obstruction of justice), you first have to prove that there are justice to be dispersed in the first place. If the man is innocent (which is the governments job to prove that he isn't, and he isn't obliged to help them), then there is no justice to be dispersed.

Also i almost don't even want to touch terrible your logic is. By that argument, the government should install cameras in EVERY home in the United States so they could spy on us. Then they would be able to solve almost every case of domestic violence, robbery etc. Sounds like a good idea to you? )

Slippery slope arguments are objectively invalid. Sorry lad. Or lass. Or other.


There's a huge difference between forcing somebody to build a case against themselves and spying on people, and decrypting some bloody data. And not only that, but an innocent man has no reason to deny them access.

And your...frankly ridiculous extensions to include spying? What if a neighbour has a CCTV camera mounted on their shared property and that camera happened to catch the intruders? Would you say that the neighbour should then hand over the tapes?

 

[KingsGambit_v1legacy]

Good on them, for once I'm happy to see something intelligent and positive come out of the US! I'm kidding to all our American cousins, but you must admit there's some crazy stuff g'wan on your side of the pond. Well done that judge.

This ruling is a great milestone for the cause of rights to privacy. In the UK, we've had pretty much every right to privacy stripped away systematically and what little is left is being taken by the govmt piece by piece with nary a moan or a whimper from the populace.

Police can stop and search anyone, for any time without reason. They can imprison anyone without reason for up to 42 days. They can insist we hand over any personal information, decryption keys, codes, etc and imprison us for 2 years if we refuse or cannot. They can monitor our communications and not to mention all the useless CCTV and traffic cameras...the former not good enough to be admissible in court, the second there to generate stealth taxes.

But no guns, free healthcare and better education so...

 

[Vivi22]

If you had the same information in safety deposit box a court order will grant access to it, if you do the electronic equivalent why should that have greater legal protection.

The problem here is that you're thinking two things are equivalent when they aren't at all. Storing documents in a safety deposit box instead of under your bed would be the equivalent of storing computer files on a third party server or friends hard drive instead of your own.

The police can gain access to it and there's nothing stopping them. But if the files in that safety deposit box are in code, which is the actual equivalent of computer files being encrypted, you don't have to tell them how to decode it, anymore than you'd have to explain bank transactions on a bank statement to them. They have access to the evidence and it's up to the prosecutors and police to make the case against you. Beyond giving them access to those files when they've proven they have due cause to acquire them and been given a warrant, you are under no obligation to help them do their job.

All you guys going on about this being a victory are simply ignoring the fact that all other methods of storing information and exchanging are legally discoverable why shouldn't encrypted data be also legally discoverable. If you write on piece of paper your plan to rob a bank, that document is capable of being used in evidence against you. If you do the same thing on a computer and encrypt it you cant be touched. Why is it any different?

No one is ignoring that at all, nor is encrypted information something the prosecutors can't legally obtain as a result of this ruling. They can be given access to it, but you don't have to help them decrypt it anymore than you would have to decrypt memo's you wrote in code for them. That's their job.

To address your example, if you write your plan to rob a bank on a piece of paper in code, they can take the piece of paper but it's up to them to decipher it. Just if you encrypt your hard drive, they can take the hard drive and look at any file on it they want, but it's up to them to decrypt it. You wouldn't have to help them in either case.

Hopefully that clarifies things because the problem seems to be that you are treating examples as equivalent which absolutely aren't, and assuming that encrypting files denies prosecutors access to them which isn't the case.

 

[Athinira]

Slippery slope arguments are objectively invalid. Sorry lad. Or lass. Or other.

That's also what they said before Hitler.

Slippery slope arguments work just fine for the simple reasons that they have proven themself to hold true so many times through history. If you could point me to whatever law you have read somewhere that says they are objectively invalid, i would be happy, or is it just some rule you created in your own little fantasy kingdom?

Slippery slope arguments weren't invented for fun. They were invented because slippery slopes happen to be, well, slippery.

There's a huge difference between forcing somebody to build a case against themselves and spying on people, and decrypting some bloody data. And not only that, but an innocent man has no reason to deny them access.

Actually there is. First of all, some people just don't like people looking into their privacy, even if it's the government. In fact, most people don't like it, although many are willing to coorperate if it gets them out of trouble faster. But bottom line is that people consider their private data to be noones business, and many are willing to fight for that right.

Second of all, the United States, as a country, has so many laws that, if you include laws that reference administrative regulations, that even the federal government can't keep track of them anymore. If you let the government into your hard drive, even if they don't find what they're looking for, there could be thousands of little things they would crucify you for instead that you wouldn't know about until they actually charge you. You want an example of how that works, Defense Attourney James Duane explains it perfectly well in this video [http://www.youtube.com/watch?v=6wXkI4t7nuc#t=5m16s] (5:17 to 7:38).

In many other countries (including my own, Denmark), this kind of things aren't something you need to fear. But in the United States, the Government are more busy watching you than looking out for you. If you watch the rest of the video above, Duane also explains why even innocent people should never talk to the police. Go watch it, it might be educational for you.

And your...frankly ridiculous extensions to include spying? What if a neighbour has a CCTV camera mounted on their shared property and that camera happened to catch the intruders? Would you say that the neighbour should then hand over the tapes?

The 'justice system' has used spying, including surveillance, wiretaps and GPS trackers for a long time. Given that it was you said that privacy was overrated when it interfered with the justice system, calling me out on being ridiculous is quite ironic. Consider if it isn't your own logic that is at fault here.

In your example, if my neighbor refused to hand over the tapes, i would say that he is an asshole for not helping out his fellow man (and i would laugh if he was their next robbery target), but i can't compel him to give over his own personal tapes. Being an asshole is not illegal, and if he hadn't had that CCTV kamera set up they would never have been caught on tape in the first place. At least he would have given me a CHANCE of getting some evidence for the police, and since i like to stay on good terms with my neighbors, I'm confident i could get him to give me the tapes willingly.

On the other hand, if he refused to give me the tape because I, myself, was often an asshole towards him, then i likely don't deserve them. That's my problem, not his. You reap as you sow.

 

[cobra_ky]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

 

[Thyunda]

-snip-

So you're trying to tell me that it's somehow acceptable for somebody to aid a criminal's escape simply because the two of you don't get on? In the neighbour example, there is now a gang of potentially dangerous criminals who are out on the streets because he won't hand over the tapes. That's what you call aiding and abetting a known felon. Those tapes would serve to bring those men to justice, and if you deliberately withhold them, you're interfering with the justice system.

Once again. It's not 'the government are spying on me', it's 'I have broken the law'. The law that is in place to protect people. This criminal protection has to stop. It's ridiculous. They didn't bring him in and demand he decrypt his files because he looked shifty, you know. They brought him in because they had reason to believe that he was guilty, and if he holds the key to the evidence, then he is obliged to show it. If he won't show it, he's guilty.

Hey. If he's innocent, he could deconstruct the case against him. But since he won't, the only option is to assume he's guilty.

Oh. And slippery slope arguments are always invalid. First lesson of critical thinking and philosophy. I live in a city where every inch is covered by CCTV. It's also one of the few cities where it's safe to go out alone in the early hours. You're watched 100% while you're outside. But are there CCTV cameras in our houses? Are we spied on? Nope.

Slippery slope arguments are, have always been, and will always be horse shit. Forcing a criminal to decrypt the hard drive with the evidence on is NOT a bad thing. Criminals are the bad guys here, not the police. Bloody youth, with their 'fuck the police' attitudes.

 

[Athinira]

decrypting it is no more admitting you had knowledge of the contents as handing over paper documents. the only thing decrypting it proves is knowledge of how to decrypt it. again he is not being forced to be a witness against himself, just to give over evidence and make it accessible to the investigators, something that happens all the time.

Handing over some paper documents doesn't prove that you own or are responsible for these, only that you were in possession of them at the time (or knew of their location). For example a secretary that hands over papers from her company archive to officials with a search warrant doesn't mean that she is responsible for their content. Anyone can hand over a piece of paper they have physical access to.

Knowledge of how to decrypt a specific encryption container is different. It requires you to know the exact means of decrypting that container, including the encryption software used, as well as the passwords and/or the keyfiles necessary to decrypt it.

Therefore, unless the encrypted content really do belong to someone else than yourself, and you can point out to the court who that person is and why you are in possession of the knowledge necessary to decrypt their content (not to mention that this person can deny your allegations and deny any knowledge of the encrypted content and how to decrypt it), the act of decrypting the content is an admittance that the content is within your power and responsibility, unless - liked mentioned - you can point out that someone else also had access.

 

[Tipsy Giant]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

LOL hardly encryption compared to modern standards

 

[cobra_ky]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

LOL hardly encryption compared to modern standards

The principle is literally identical.

 

[Tipsy Giant]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

LOL hardly encryption compared to modern standards

The principle is literally identical.

Except that their encryption is for passing on messages and ours is for hiding information of varying description

 

[cobra_ky]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

LOL hardly encryption compared to modern standards

The principle is literally identical.

Except that their encryption is for passing on messages and ours is for hiding information of varying description

uh, their encryption was used to pass messages with hidden information in them.

 

[Tipsy Giant]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

LOL hardly encryption compared to modern standards

The principle is literally identical.

Except that their encryption is for passing on messages and ours is for hiding information of varying description

uh, their encryption was used to pass messages with hidden information in them.

but only text based information, whereas a hard drive can store more than text

 

[Athinira]

So you're trying to tell me that it's somehow acceptable for somebody to aid a criminal's escape simply because the two of you don't get on?

And once again, you confuse the difference between "obstruction of justice" and "refusing to help" (in this case help IDENTIFY the robber, which isn't even close to helping his escape).

As for whether or not it's acceptable: Legally it's perfectly acceptable.

Morally: Like i said, you reap as you sow. If i don't get along with my neighbor, it's entirely up to him whether or not he wants to help catch my burglar. But like i said, you reap as you sow, and if he later gets targeted by the burglar, then he will probably regret not handing over those tapes. Nonetheless, it's a great incentive to help each other out instead of not getting along.

In the neighbour example, there is now a gang of potentially dangerous criminals who are out on the streets because he won't hand over the tapes. That's what you call aiding and abetting a known felon.

No it's not. That's what YOU call aiding. Your definition is (legally) off.

You cannot force people to care about whether or not there are criminals on the street. Now luckily, most people DO care because they have common sense and can see reason. But for the more stupid people out there, you sadly cannot prevent people from being stupid.

Once again. It's not 'the government are spying on me', it's 'I have broken the law'. The law that is in place to protect people.

No it's not. The law is in place to in an attempt to prevent anarchy. There are many laws that doesn't protect people, and some laws that can be considered directly harmful to the people. In fact, calling the legal system for the 'justice' system is wrong in so many ways, because justice is a very definable size. Try travelling to some middle-eastern Muslim countries and ask the women there how the law protects them (hint: it doesn't, and they are often entirely at the mercy of their abusive husbands).

This criminal protection has to stop. It's ridiculous.

I'll just quote the Supreme Court again:
"One of the 5th Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speakers own mouth."

Again, watch the video i linked several times in this thread. It might enlighten you. I'll remind you that the United States is one of the western countries with the highest conviction rate of innocent men.

Hey. If he's innocent, he could deconstruct the case against him. But since he won't, the only option is to assume he's guilty.

Then how come so many people have been convicted through history while they were innocent? Because the legal system isn't perfect, that's why.

'Deconstructing' a case against you, even if you're innocent, isn't easy. Again, watch the video i linked (you only need to watch the first half). It shows perfectly well how innocent men who doesn't invoke the so called "criminal protection" (as you described it) can easily get convicted without having done anything wrong.

Oh. And slippery slope arguments are always invalid. First lesson of critical thinking and philosophy. I live in a city where every inch is covered by CCTV. It's also one of the few cities where it's safe to go out alone in the early hours. You're watched 100% while you're outside. But are there CCTV cameras in our houses? Are we spied on? Nope.

Who says we might not be in 10 years? 20 years? You are trying to tell me you can predict the future here. Sorry for not biting.

Also, I'd like you to link me this "Critical thinking and philosophy" study you seem to have taken, because I've never heard of it.

Slippery slope arguments are, have always been, and will always be horse shit. Forcing a criminal to decrypt the hard drive with the evidence on is NOT a bad thing.

You're not a criminal until you are convicted.

That, and like i said again, there are ways around this. You can't beat encryption, ever, because hidden volumes deconstructs the very thing you are trying to do, and there is nothing you can do about it.

Of course, if you actually knew anything about how encryption actually works... Ah, the bliss of discussing with ignorant people )

 

[Vivi22]

i know the password to my mums computer because i have to fix it all the time, does not mean i know what the contents are.

this is a simply case of a deliberate attempt at hiding evidence and refusing to hand it over. it should not be protected any more then shredding papers.

Your comparison is flawed. Encryption isn't tantamount to destroying evidence because nothing is destroyed. It is simply stored in a state which renders it unreadable unless you either know how to decrypt it or can crack the decryption. No information is lost, just the meaning is hidden, and this is no different than if you had physical documents written in code.

And you can absolutely bet that being able to decrypt physical documents would be used as evidence against you in court, just as possessing the means to decrypt computer files would be. Especially if there was something incriminating contained within. Which is why the 5th amendment absolutely should apply here.

If you're going to argue otherwise, at least use legitimate comparisons rather than comparing two things which aren't equivalent at all.

but only text based information, whereas a hard drive can store more than text

And that distinction is relevant how?

 

[Thyunda]

-snip-

Link you to this 'critical thinking and philosophy'?!
Alright. Fine.

http://www.stokesfc.ac.uk/st/curriculum_courses/humanities

Oh. Wait. Did you want some hastily Googled video from some guy? No, see, I'm one of them educated types.

And once again - I can't comprehend how you can defend actively refusing to aid an investigation. Your neighbour doesn't hand the tapes over? Because of him, the criminals are not identified. Because of him they can strike again. See, with your attitude, we can't remove the stupid. But with a more...forward-thinking approach, then yes, we CAN. People need to respect the police. 'Never trust a copper' is 70s talk. I like to think we've come past that. If the officer asks 'what's in the box', you open the box. The law enforcement has a job to do. An important job.

And the Middle East is an excellent example of why religion and state should remain totally separate. That doesn't apply here. We're talking about the fair, democratic, safe-for-all, equality-driven West.
Course, it's not safe at all, because you can avoid jail by simply telling the FBI "No, I won't let you see the evidence against me."

 

[Tipsy Giant]

i know the password to my mums computer because i have to fix it all the time, does not mean i know what the contents are.

this is a simply case of a deliberate attempt at hiding evidence and refusing to hand it over. it should not be protected any more then shredding papers.

Your comparison is flawed. Encryption isn't tantamount to destroying evidence because nothing is destroyed. It is simply stored in a state which renders it unreadable unless you either know how to decrypt it or can crack the decryption. No information is lost, just the meaning is hidden, and this is no different than if you had physical documents written in code.

And you can absolutely bet that being able to decrypt physical documents would be used as evidence against you in court, just as possessing the means to decrypt computer files would be. Especially if there was something incriminating contained within. Which is why the 5th amendment absolutely should apply here.

If you're going to argue otherwise, at least use legitimate comparisons rather than comparing two things which aren't equivalent at all.

but only text based information, whereas a hard drive can store more than text

And that distinction is relevant how?

Well it's relevant as the "Founding Fathers" could not have known that an entire libraries worth of text with moving images proving fault could be stored and encrypted, can't believe i'm arguing whether a bunch of dudes from 1776 predicted hard drive encryption....!

 

[Athinira]

i know the password to my mums computer because i have to fix it all the time, does not mean i know what the contents are.

...and similarly, being in possession of a computer with encrypted contents doesn't mean you know what the password for that content are )

this is a simply case of a deliberate attempt at hiding evidence and refusing to hand it over. it should not be protected any more then shredding papers.

No, no and no.

First of all, nothing is hidden. The police have access to the data, they just don't have the knowledge of how to read it. Shredding papers is DESTRUCTION of data. An entirely different thing. Destructed things can't necessarily be reconstructed, and those papers can therefore be irrecoverably lost. Decrypted data can ALWAYS be recovered if someone knows how to do it.

Second of all, you assume beforehand it's evidence. Until the content is actually decrypted, you don't know if it was just random data, of if there was actually something of interest to the case.

Thirdly, you don't know if anyone is "refusing" anything. Until the data actually gets decrypted, you cannot conclusively prove that the defendant is actually capable of decrypting the data to begin with. The law states that you cannot be held in contempt of court for not doing something you are incapable of doing.

.

Since you decided to bring in the example with you knowing your moms password, allow me to extend your example:
Imagine that your mom gives you her computer since she has gotten a new one. A few months later, the feds knock on your door with a search warrant because they believe to have evidence that there are illegal content on your computer (or maybe they believe you are tax frauding and wants to seize any documents that could be relevant, including digital ones). On your computer they find a file of random data (from back when your mom had the computer), which they suspect is an encrypted file.

Now first, they demand you decrypt it. You deny being able to decrypt it, stating that it's a leftover file from when your mom was the proprietor. The feds talk to your mom, but she says she forgot the password (or maybe she isn't sure what file they mean or can't remember) since it's some months since she used the computer.

Now, by your logic, the feds can now charge both you and your mom for withholding evidence, even though they cannot conclusively prove that the file is actually an encrypted file, or that either of you actually know (remembers) a valid password for the file.

And once again, i will remind you that real criminals CAN and WILL cheat the feds with a hidden volume, one which you cannot prove the existence of.

 

[cobra_ky]

I love that 'The Founding Fathers' knew about computing and encryption when they wrote the constitution!
Any chance your old document could be slightly irrelevant to a modern day problem *Cough*Bible*Cough*

<a href=http://en.wikipedia.org/wiki/Jefferson_disk>The Founding Fathers DID know about encryption.

LOL hardly encryption compared to modern standards

The principle is literally identical.

Except that their encryption is for passing on messages and ours is for hiding information of varying description

uh, their encryption was used to pass messages with hidden information in them.

but only text based information, whereas a hard drive can store more than text

a hard drive can only store binary data, which can be interpreted as text, images, or what have you. In any case, means of encrypting or hiding data, whether visual or textual, has existed for millenia and the Founding Fathers were certainly aware of the methods available to them, as they used them extensively throughout the Revolution.