Man jailed indefinitely for refusing to decrypt hard drives loses appeal

The argument in the parent is well-worn, but it fails serious consideration if it ignores the facts that the U.S. courts interpret laws made by the elected officials, that the judges are appointed by elected officials, that their unelected status is established by elected officials and a national referendum (i.e., the votes that established the Constitution), and the reasons for their unelected status.

What I think we should do is revisit what exactly SCOTUS does, and why. Right now they basically have the final say in any question of constitutionality, and the outcomes are either "it's constitutional" or "it's unconstitutional". I think that's wrong - the third possible outcome should be "Constitution is ambiguous on this". Currently this gets folded into one of the other options, depending on the majority of the court, but I think it's a poor model - if Constitution really is ambiguous, I don't want a simple majority of a few unelected people, many of whom are quite partisan, to make that decision.

Instead, I think this option (ambiguity) should be explicit. The way it would work is something like this - if the court decision is unanimous (or maybe with at most one dissenter) one way or the other, then it's assumed that the Constitution is really unambiguous on the subject, and that's the ruling - same as now.

But if you get a bigger split, then the ruling is automatically "ambiguous". At that point all the disagreeing parties on the court should have to sit down and write a short opinion on what changes to the Constitution they would require to make the other side's opinion unambiguously correct (if there are more than two sides - which can be the case if different judges rule the same way for different and unrelated reasons - then such opinions should be written for all parties other than the one in question).

Then, those opinions are automatically submitted as proposed constitutional amendments to the states for ratification, per usual procedure, except that each state can only ratify one at a time, and there's a reasonable time limit. If one of the amendments wins, then (since all judges have already stated under oath that this is what is required to remove any ambiguity) the ruling is in favor of the corresponding opinion.

If none of the amendments get the requisite majority of state ratifications, then court decides based on simple majority, just like today - but the resulting decision is not considered binding precedent, and only applies to that one case. If the same ambiguity arises in future cases, the process has to be repeated.

Ideally, this should be combined with a lower bar for constitutional amendments - 3/4 of states is really quite ridiculous, given the sheer number of them, and population differences. Something like 2/3 would be more sensible. Although ideally it should incorporate direct popular vote in a referendum as well, in a series of cascading vetoes to check each other - e.g. 2/3 of popular vote is enough to amend, but a simple majority of states can veto that, but 3/4 of popular vote can override the veto.

Law enforcement students often ask the question “can I search a locked container?” A better question to ask may be “when can I search a locked container?” The fact that a container is locked may not increase the possessor owner’s expectation of privacy but does limit the law enforcement officer’s access to the secured area. The ability to search a locked container will depend on the justification the law enforcement officer has for intruding into the area. The purpose of this article is to examine the different legal avenues a law enforcement officer can use to search locked containers. ..."

https://www.fletc.gov/sites/default/files/imported_files/tra...

I'm not sure that's true, the police are authorized to break whatever they need to if you don't assist.

As for combo safes, this seems like a good overview: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s...

What does that mean though? obligation is given meaning by the penalty for not complying.

The immediate thought that comes to my head when they say this is: Then whats the problem? You can prove it, so why do you need more proof? Unless your possibly maybe your case isn't rock solid or you want to find more crimes.

The Fifth Amendment has been consistently interpreted to mean far more than "confession"

If the government can't compel someone to say when, where and how they disposed of the bodies, then they also can't make someone explain how they encrypted some files.

In case they can confirm the existence of files some other way I guess you could make the case that the government can force someone to produce those files. Of course this won't tell them anything they didn't know already (which is kind of the point). Making someone produce files that may or may not exist is the same as making them testify that those files exist and that they have access to them, which I would argue falls under the 5th amendment.

We're starting to get to the edge of the point where this guy might legitimately forget his password. I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months, and apparently they haven't found the answer, so this password is probably a pretty good one that's not based on a word or even a sentence.

If he stays in jail without trial for another two years and then says "I can't remember my password any more", what should we do?

- There must be evidence that I can unlock the device for the two situations to be equivalent, and the request must be for specific documents known to exist. If they don't exist all evidence found must be invalidated because the cause for the search was invalid.

- If evidence of ability to unlock the device does not exists, but the assumption is that since it's mine I can unlock it, I think the analogy is slightly flawed. Since the ask is now not about producing a specific thing I'm known to possess, I'm indirectly being asked to produce a document (password), albeit not in material form but typed on a keyboard. Since it's never been proved that I actually am able to open it, the situation is not equivalent, but more like there being a safe in my house that nobody has seen me open, no key is know to exist, but since I own the house I am assumed to be able to open it, and I'm held in contempt because I say I can't or won't open it. It's not too uncommon for a house to contain a safe the current owner can't open, but it does not lead to the same situation since it can usually be forced open. The only difference with good encryption is that the option to use force has become increasingly impotent.

- Unlocking a computer without proper limits and auditing of the search is also more like being asked to give access to any document storage rooms I own or have access to. Reason being that unlocking a device will in many cases give access to more than the bare contents of the drive, giving access to emails, Dropbox, and other logged on applications and sessions. Since parallel construction appear to be a thing, it's ripe for abuse.

Maybe there needs to be a process where independent auditors can, under surveillance of the defendants lawyer produce named documents from seized evidence, as giving police and/or prosecutors blanket access to devices entire content could create lots of opportunities to create parallel construction stories for any content found not under the current warrant, and as bizarre parallel construction is, it appears to have been used.

Part of the issue seems to be the courts are very proficient in coming up with very interesting interpretations. It feels a lot like a literature or art interpretation class, where everything is BS but a lot of people have a bunch of rules convincing them they aren't. Then again, the founding father's weren't too much different.

Founding fathers: "All men created equally".

Also founding fathers: owns slaves (some at least)

In this case, the court is asking the man to provide evidence which the court is not aware of. And there also might be evidence for other crimes which the court isn't aware of.

This is also a right to privacy issue.

Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence.

The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence.

Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists.

[1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."

That's a good point. They either have proof he downloaded child porn or they don't. They're definitely trying to do more than prove it. Probably set a precedent increasing their power as usual.

Except that's not how it works, and that's not what the 5th protects against. Let's say you have bank records that incriminate you in some money-laundering scheme. The authorities know that you have these records, because an associate of yours has informed them that you do. The protection against self-incrimination is about transfer of information, not about pure action (even if that pure action implicitly transfers incriminating information). The incriminating information would be "I have bank records that detail illegal activity". The authorities already know that; they do not have to ask you to provide that incriminating information. However, it is absolutely within their rights to say "give me all your bank records dated from X to Y", and yes, you must comply.

Sure, you can try to provide incomplete or doctored records, but if they're able to prove that they're incomplete, you're in contempt of the court order, and they'll likely add obstruction of justice or evidence tampering to the list of charges.

In the narrowest possible view, the 5th protects you from being put up on the stand and to be coerced into a confession. Some/many judges interpret it a bit wider than that, but it seems few would find the request that Rawls turns over the files in question to be problematic.

Edit: whether or not it's true in this instance.

Of course, Free people know that rights are obtained and maintained by individuals themselves - eg the second amendment.

1) I use a password manager so I don't know the password. However, I have the means to acquire the password.

2) I use a password manager but somehow lost access to it unintentionally.

3) I use a password manager and lost access to it by design. (eg. Using a dead man's switch of some kind that deletes it if I don't "check in" for some period of time)

4) I used to know the password. However, I suffered a traumatic brain injury and cannot recall it.

I obviously don't have the answers but I think these are interesting to think about as different points in a large legal grey area.

If there is reason to believe that you are telling the truth (say, you're being asked which of two parking spaces you saw a car in 10 years ago) then you're fine.

Same thing goes here. Rational disinterested people (a judge or a jury) will look at the available evidence and make their best judgement about whether you are telling the truth when you say you can't remember.

https://en.wikipedia.org/wiki/Deniable_encryption https://en.wikipedia.org/wiki/TrueCrypt#Plausible_deniabilit...

You wanted the contents of this drive? Here they are!

The owner of the drive is definitely in a legal and moral grey area, but it would be supremely difficult to prove mens rea in this case.

Interesting thought experiment: What happens when someone fills a hard drive with junk data and then encrypts it, then gets subpoena'd for the unencrypted contents of the drive?

Sounds like the only right answer for your password is "I do not recall"

* Backup logs that show hashes of files that match that of known child porn image files.

* Testimony from the guy's sister that she has seen him decrypting the drives, and that he showed her child porn from the drives.

So yes, what you're saying is true, but in this case, I'm (reluctantly) on the side of the authorities.

https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...

I'm confused by this statement in the above ruling:

    The Forensic examination also
    disclosed that Doe had downloaded thousands of files known
    by their “hash” values to be child pornography.


    The files, however, were not on the Mac Pro, but instead had been
    stored on the encrypted external hard drives. Accordingly,
    the files themselves could not be accessed.

It's scary to me because I've forgotten my encryption passphrases more than once, and I'm highly-educated.

He was running a Freenet node. Investigators were also running Freenet nodes, which peered with his. The were using a tweaked Freenet client that logs lots of stuff. So they know that chunks of child porn files went to his node. What they arguably don't know is whether he requested them, or merely relayed requests from other peers. But they have experts who will bullshit convincingly enough about that.

Edit: The Freenet Project, in my opinion, has irresponsibly relied on "plausible deniability".

It's not equivalent. The Supreme Court has mentioned in past decisions that combo locks may well count as products of the mind, and so fall under 5th protection, where key safes and compelled DNA gathering do not. See: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s...

https://en.wikipedia.org/wiki/Black_British

(Thanks for the upvotes, and pmyteh for replying)

A simple solution is to have your encryption software automatically add a large garbage file inside every encrypted volume. When you have something to hide, replace the garbage file with your new encrypted data.

This lets you nest your encryption to arbitrary depth, allowing plenty of room for plausible deniability. E.g. you could put your financial records at the first level, pictures from an erotic crossdressing forum at the second level, and the stuff you’re ACTUALLY hiding at the third level.

One issue out of many, is that many who has worked with and used computers for decades has encrypted drives or volumes in a drawers, or closet which they have forgotten the password to, and could in a very theoretical sense be held in contempt if they were to be prosecuted for something and the prosecutor by some reason got a warrant for that drive.

Another is that according to what I have read the prosecutions appears to have enough to convict, so maybe setting a precedent that could be - but not necessarily is - dangerous to society might not be warranted here.

Yet another is that lots of people feel that it is their right and liberty to be able to store their personal information where it is safe from anyones eyes, even when it is completely legal. The inability to keep the private private feels like having a camera in you bedroom that you have been promised will never be turned on to film you, but the blinking red LED causes a relenting unease prompting you to wear a pyjamas to bed, even though you really like to sleep naked. This is called a chilling effect, where knowledge of surveillance or that someone can probe your most private writings and pictures causes you to not write and makes those images in the first place.

Every crime is a tradegy, but nothing creates more tradegy than legal systems or governments run amok. History teaches us that no government is safe from becoming a tyrant. This is why law enforcement sadly must always be ineffective, as the power wielded by government through law enforcement would otherwise become far too great. This is more important today than it has ever been because today we could probably implement an almost perfect police state, a perfect prison, the perfect nightmare from where there is no return. A place where no revolution is possible, no dissent is ever visible, and the fear is total and all encompassing.