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U.S. District Judge: Forced Decryption of Hard Drives Violates Fifth Amendment

Soulskill posted about a year ago | from the bowling-for-scotus dept.

The Courts 417

hansamurai writes with an update to a story we've been following for a while. Jeffrey Feldman is at the center of an ongoing case about whether or not crime suspects can be forced to decrypt their own hard drives. (Feldman is accused of having child pornography on his hard drives.) After initially having a federal judge say Feldman was protected by the Fifth Amendment, law enforcement officials were able to break the encyption on one of his many seized storage devices. The decrypted contents contained child pornography, so a different judge said the direct evidence of criminal activity meant Feldman was not protected anymore by the Fifth Amendment. Now, a third judge has granted the defense attorney's emergency motion to rescind that decision, saying Feldman is once again (still?) protected by the Fifth Amendment. Feldman's lawyer said, "I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. This case is going to go many rounds. Regardless of who wins the next round, the other side will appeal, invariably landing in the lap of the Seventh Circuit Court of Appeals and quite possibly the U.S. Supreme Court. The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0."

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My goodness (5, Interesting)

niftydude (1745144) | about a year ago | (#43912525)

An outbreak of common sense. I can scarcely believe my eyes.

Now to see if it holds.

Re:My goodness (5, Insightful)

Anonymous Coward | about a year ago | (#43912573)

An outbreak of common sense. I can scarcely believe my eyes.

Now to see if it holds.

It won't.

I promise.

This is but one more cut...in the 1,000 cuts that will ultimately be the demise of our Rights.

And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

It won't.

I promise.

Re:My goodness (2)

rvw (755107) | about a year ago | (#43912597)

An outbreak of common sense. I can scarcely believe my eyes.

Now to see if it holds.

And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

Fear nothing but fear itself...

Where is the leader who can make this clear? Where is the leader who can offer hope?

Re:My goodness (4, Insightful)

Nerdfest (867930) | about a year ago | (#43912735)

Many offer hope. It's delivering the reality that seems to be beyond anyone's grasp once they've had a taste of power.

Re:My goodness (5, Funny)

Anonymous Coward | about a year ago | (#43912829)

An outbreak of common sense. I can scarcely believe my eyes.

Now to see if it holds.

And all under the guise of two things: Either "Terrorism" (makes you think who really won, doesn't it?), or "won't someone think of the children" (as if THIS case will magically remove ALL child porn from the internet).

Fear nothing but fear itself...

Where is the leader who can make this clear? Where is the leader who can offer hope?

Sarah Palin?

Ouch! Stop punching me!

Re:My goodness (5, Funny)

Gr8Apes (679165) | about a year ago | (#43913349)

Sarah Palin?

Ouch! Stop punching me!

You brought her into this, you'll have to make her stop.

Re:My goodness (1)

taucross (1330311) | about a year ago | (#43912685)

Not with that attitude, it won't.

Re:My goodness (5, Insightful)

ultranova (717540) | about a year ago | (#43912795)

Either "Terrorism" (makes you think who really won, doesn't it?)

Osama did. Not only did he deliver what appears to have been a mortal blow, both morally and economically, but got away with it too, living in comfort and watching his enemies finish his work for him, and finally receiving a quick and easy death just before the onset of old age, making him a martyr in the eyes of his followers.

Re:My goodness (4, Insightful)

jythie (914043) | about a year ago | (#43912981)

On the other hand, he failed his various stated goals. People often forget that the attacks on the US are not some abstract 'they hate our freedom' thing, but tools towards specific political goal. To say he 'won' is like saying a barricaded criminal who manages to shoot a couple cops before the SWAT team gets them 'won' because they managed to 'hurt' the police.

Re:My goodness (5, Insightful)

Anonymous Coward | about a year ago | (#43913103)

Here, let me fix the analogy for you. Your criminal doesn't shoot the cops, he infects them with the black plague. Two weeks later, all the cops are dead. Now, who won? By any measure, Osama won on 9/11. I saw it the week after. Our response was wrong then, and has been ever since. Amerika is dead, just waiting on the autopsy.

Re:My goodness (-1, Flamebait)

Anonymous Coward | about a year ago | (#43913501)

No, America is dead, Amerika is live and living large.

Re:My goodness (2, Interesting)

Anonymous Coward | about a year ago | (#43913509)

He hurt us undoubtedly, but I think you're being a bit defeatist. We can still recover from this. It's easy to blame the politicians (and they are scum) for their poor reactions and using 9/11 as an excuse to steal our freedoms, but the truth is that politicians in this country are still very beholden to public opinion around here. It's the people that have to turn the corner to stop this madness. If you can convince all of your neighbors that the wars on Terrorism, Small Amounts of Pot, and All Things That Might Harm Children are bad for America, America will turn around and become great again.

Re:My goodness (5, Funny)

wbr1 (2538558) | about a year ago | (#43912891)

You forgot one...

"Think of all the terrorist children!"

Re:My goodness (5, Insightful)

Taco Cowboy (5327) | about a year ago | (#43912593)

An outbreak of common sense. I can scarcely believe my eyes

Unfortunately it won't last long

With so much weighting on this - money, power, greed, and the insatiable desire (on the part of both the Liberals and the Conservatives of the American government) to restrict the liberties of the American people, this outburst of common sense would be anything but a short-flash

Re:My goodness (4, Insightful)

ranulf (182665) | about a year ago | (#43913265)

Granted, I'm not an American, so my understanding of US law is a bit wooly, but somebody please correct me if I'm misunderstanding the story so far.

  • The "authorities" wanted him to hand over the encryption keys to his hard disk, which would have incriminated him and this violated the fifth amendment.
  • He never handed over these keys, yet the "authorities" were able to eventually break the encyrption anyway and prove he'd committed a crime.
  • This judge says that this evidence can't be considered because they'd previously asked for the keys and he'd refused.

Where is the common sense here? This guy clearly had child porn on his computer - it's been found without violating his fifth amendment rights. He's clearly committed a crime and the common sense thing here is to try him and convict him accordingly. The encryption keys to the other hard disks now would just provide additional evidence and perhaps the identities of other perpetrators. But if they already have enough to convict him, there is surely no common sense in letting him off while they debate whether they should be allowed access to the other drives or not.

Re:My goodness (3, Insightful)

L4t3r4lu5 (1216702) | about a year ago | (#43913387)

I'm just guessing here, but I believe the judge sees that "You were looking for CP. You found it. What are you looking for now? He's already guilty on the CP charge. You don't get to fish for more stuff on other drives."

Re:My goodness (0)

Anonymous Coward | about a year ago | (#43913401)

Thank you. This is exactly the correct answer.

Re:My goodness (4, Interesting)

roman_mir (125474) | about a year ago | (#43912687)

By the way, in case somebody doesn't understand what the 'fifth' is, it's the lack of authority by the government to force somebody to testify against themselves.

To understand its roots, you have to look back at when kings and other rulers would capture and torture somebody to get a 'confession'. When people are tortured, most will confess to just about anything, so torturing is a very simple way to get a conviction (or to murder somebody, whichever comes first) and using torture to get a conviction can often lead to murder at the end of torture anyway.

But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director [cnn.com] "taking the fifth" makes no sense, she wasn't on trial.

Saying: 'I am taking the fifth' only makes sense when you are on trial or a suspect of a police investigation, but it doesn't make sense to say "fifth" when you are testifying to Congress.

You can refuse to answer questions, but invoking the fifth amendment has no meaning in that context, AFAIC she admits her guilt and/or lack of understanding of the law when she says that.

OTOH in this case I am NOT convinced that the fifth amendment is relevant in cases of encrypted data!

Forcing somebody to unlock their data is not the same as forcing somebody to sign a statement. After all, it's real data, it's already there. By being forced to unlock the data you are not being forced to say something new, it's not new information that is on the disk, it's not like you are forced to say: I am guilty, here is the body.

You are forced to open a box that may have data providing that you are guilty, but that information is already there and it's not new, you weren't forced to first create that data and then give it up, you are forced to open the data that existed already in a form that is not attached to you, it's independent of you, it is already existing outside of you.

How is that equivalent of being tortured (or punished) into saying the words: I am guilty, here is the stuff you are looking for?

I am just being pedantic here, the fifth is not necessarily a protection against being forced to give up data that already exists that you do not have to create or produce at the moment of giving it up.

Re:My goodness (4, Informative)

nospam007 (722110) | about a year ago | (#43912745)

"But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director [cnn.com] "taking the fifth" makes no sense, she wasn't on trial."

I you shut your cake-hole when the police interrogates you, chances are that you'll never go to trial. People always seem to think that they can talk themselves out of being arrested or indicted, let me assure you, it's not the case.

Don't talk to the police, ever! It can only hurt you. It doesn't matter if you're guilty or not.

They don't tell you for nothing that everything you say can be used against you, they mean it and they will.

Re:My goodness (1)

roman_mir (125474) | about a year ago | (#43912767)

I agree, talking to the cops is stupid in every which way, but I am not suggesting somebody should talk to cops. Get your lawyer obviously.

I am saying that invoking fifth amendment while being questioned by the Congress is meaningless and that the judge in this case with the encrypted harddrive just may be literally incorrect, because the data is already present, the defendant is not being forced, punished into, tortured into say anything new, create any new data, the data is there in a form independent of the suspect.

Re:My goodness (1)

Anonymous Coward | about a year ago | (#43913435)

So being compelled to tell them where you buried the body isn't covered by the fifth? The body is there, it is existing "data" so to speak, so all you are doing is telling them where to find it.

Oh, and incidentally confirming that you know of it, including location, which will be used as circumstantial evidence to convict you of a murder you may not have committed if you were just unlucky enough to accidentally discover the site or you saw it being buried but can't describe the real perp for some reason and don't have a good alibi for the time frame during which the murder took place.

Re:My goodness (0)

Anonymous Coward | about a year ago | (#43912799)

"Don't talk to the police, ever! It can only hurt you. It doesn't matter if you're guilty or not."
---
I've been told them same by close LEO friend, who said the more you say the worse off you'll generally be, and reminded me never assume anything a LEO says to you is the truth, particularly so if you know you are being accused\charged with anything, even traffic stops he advised to keep any talking to a bare minimum.

Re:My goodness (1)

Joce640k (829181) | about a year ago | (#43912975)

Remember: The police have no interest in proving innocence, only in proving guilt.

Everything they say, everything they ask, it's all designed to prove guilt. You only have to use one wrong word and you're in for a miserable time. The police love it when people protest their innocence and/or try to explain things away, it just gives them more ammunition.

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

Re:My goodness (1)

newcastlejon (1483695) | about a year ago | (#43913121)

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

For which, no doubt, you'd be charged with the local equivalent of driving without due care and attention.

Re:My goodness (1)

pipedwho (1174327) | about a year ago | (#43913203)

Far better to just say nothing (or "I don't know, officer" to a direct question like "Do you know how fast you were going?").

"I don't know, officer" is effectively an admission of guilt. If you don't know your speed, you are basically acceding to the officer's 'evidence' that you were speeding. That is why, as you say, it's far better to say nothing. If he has valid evidence, then you're going down. If not, then you walk.

You don't want to appear rude to the police if you can avoid it, but you need to be careful to not answer any question, direct or otherwise, with anything but verifiable facts (ie. your name, address, etc). It doesn't help anyone if the police get lazy and try to prosecute with no real evidence beyond a vague statement that gets twisted into an implication that you've committed some random criminal act that you weren't even aware existed.

Re:My goodness (5, Informative)

_Ludwig (86077) | about a year ago | (#43913161)

"But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director "taking the fifth" makes no sense, she wasn't on trial."

I can’t see whomever you’re quoting, but this is nonsense. While the text of the Fifth protects you from incriminating yourself at criminal trial, subsequent Supreme Court decisions have ruled that it applies much more broadly. People take the Fifth all the time when they’re testifying at hearings or as witnesses, i.e. not on trial. The right to remain silent under police questioning derives directly from it.

Re:My goodness (1)

Iridium_Hack (931607) | about a year ago | (#43913447)

I don't think I could have said it better.

Re: My goodness (1)

Anonymous Coward | about a year ago | (#43912821)

She was and is under criminal investigation, tootsiebun, so it made perfect sense.

Re:My goodness (2)

Squiddie (1942230) | about a year ago | (#43912903)

See, I think you are still wrong. The data literally does not exist in any other form but that which is under encryption. This is forcing someone to interpret data, not unlocking something. To also request documents, there must also be a knowledge that they both exist, and that they are in the possession of the person under investigation. The court does not know that he does have child pornography in the other drives, nor that they and all the data contained are his and his alone. I do not believe that the court has any power to force someone to interpret an encrypted journal, and I fail to see the true difference between this and encrypted drives.

Re:My goodness (0)

udachny (2454394) | about a year ago | (#43912929)

(same user, different account)

You may be correct that this is 'interpreting' the data, but I don't see how the fifth literally applies here. Nobody is forcing you to 'interpret' the data in a way that would incriminate you. Either you can unlock it into SOME readable form or not, if you can and you do, whatever is found there may or may not be admissible, but this is not the same thing as forcing you to unlock it into a form that would incriminate you.

So if you have an encrypted file that you can unlock and the contents are readable in a way that does not incriminate you in any way, then it's just as valid as if you unlocked it and there was a smoking gun there.

My point is that the fifth does not necessarily apply here literally, not anything else.

Re:My goodness (1)

jythie (914043) | about a year ago | (#43913001)

Which is what makes this such a tricky case and why it keeps bouncing back and forth. Both sides are kinda right depending on what analogy one draws to already existing practices. It could be argued that being ordered to hand over documents and such has been a 5th ammendment violation for years, but that horse has already left.

Re:My goodness (0)

Anonymous Coward | about a year ago | (#43913373)

Al Capone was convicted on the basis of an "encrypted journal" that the government interpreted. How is Capone's bookkeeper any different to the government's encryption-breaking computers?
If only encryption was the magical coverall for illegal activities you wish it to be. The connection between my computer and the bank I'm hacking to steal funds from is encrypted too...

Re:My goodness (1)

Anonymous Coward | about a year ago | (#43913003)

You take the fifth when under police interrogation which is not part of a trial, so yes, doing it in front of a congressional investigation is very much similar and is not new ground.

Re:My goodness (5, Informative)

Blaisun (2763413) | about a year ago | (#43913015)

By the way, in case somebody doesn't understand what the 'fifth' is, it's the lack of authority by the government to force somebody to testify against themselves.

To understand its roots, you have to look back at when kings and other rulers would capture and torture somebody to get a 'confession'. When people are tortured, most will confess to just about anything, so torturing is a very simple way to get a conviction (or to murder somebody, whichever comes first) and using torture to get a conviction can often lead to murder at the end of torture anyway.

But that is the origin, when somebody says: "I take the fifth", what they mean is that they will not testify against themselves. But to testify against yourself you have to be a suspect, you have to be the one on trial, that's why Lois Lerner, the IRS director [cnn.com] "taking the fifth" makes no sense, she wasn't on trial.

Saying: 'I am taking the fifth' only makes sense when you are on trial or a suspect of a police investigation, but it doesn't make sense to say "fifth" when you are testifying to Congress.

You can refuse to answer questions, but invoking the fifth amendment has no meaning in that context, AFAIC she admits her guilt and/or lack of understanding of the law when she says that.

OTOH in this case I am NOT convinced that the fifth amendment is relevant in cases of encrypted data!

Forcing somebody to unlock their data is not the same as forcing somebody to sign a statement. After all, it's real data, it's already there. By being forced to unlock the data you are not being forced to say something new, it's not new information that is on the disk, it's not like you are forced to say: I am guilty, here is the body.

You are forced to open a box that may have data providing that you are guilty, but that information is already there and it's not new, you weren't forced to first create that data and then give it up, you are forced to open the data that existed already in a form that is not attached to you, it's independent of you, it is already existing outside of you.

How is that equivalent of being tortured (or punished) into saying the words: I am guilty, here is the stuff you are looking for?

I am just being pedantic here, the fifth is not necessarily a protection against being forced to give up data that already exists that you do not have to create or produce at the moment of giving it up.

I disagree with your take on the "fifth", you should be able to take the fifth on any statement that COULD be used against you in court, just because you are not there now, doesn't mean that the statement you make will not land you there.

in addition, i will also take the counter point on decrypting the HD. i take the essential meaning of the fifth as to you should never have to provide evidence against yourself. By providing them with the password, or whatever the key is, to the encrypted HD, you are providing them with evidence that they would not be able to get with out your assistance. If they are able to get the evidence(brute force decryption, or what have you) without your assistance, with a warrant, that is fine, but you should never have to assist, in any way, in your own prosecution.

Re:My goodness (1)

gnasher719 (869701) | about a year ago | (#43913075)

in addition, i will also take the counter point on decrypting the HD. i take the essential meaning of the fifth as to you should never have to provide evidence against yourself.

You are confused by two different uses of the word "evidence". The phrase "give evidence" means "give information and answer questions formally and in person in a law court or at an inquiry". That is not the same as "evidence" with the meaning "information drawn from personal testimony, a document, or a material object".

You don't have to "give evidence" against yourself. But you can be forced to "provide things that are evidence". There is a good reason why you cannot be forced to "give evidence" against yourself: Because you could be under pressure, threatened, and so on, to give _false_ evidence against yourself. That's not the case when you are forced to decrypt a hard drive: Whatever evidence is found there is the true evidence.

Re:My goodness (0)

Anonymous Coward | about a year ago | (#43913253)

So following your reasonement, if one day someone develop a machine that can read your mind and memories you will not be able to refuse to be "inspected" by this machine as you have evidence in your mind?

Re:My goodness (4, Interesting)

msobkow (48369) | about a year ago | (#43913211)

My understanding of the fifth is that it only applies to information that can't be collected under a warrant.

For example, if you have a lockbox with incriminating documentation, and the police can provide sufficient evidence for a warrant, you can be required to unlock the box. However, you can still plead the fifth if a lawyer is asking about your "intentions" for the contents of the incriminating box.

So I think there is a valid question of whether the FBI had the right to force the lock on "the box" of encryption if they didn't have a warrant already. That's like the police breaking and entering to seize evidence; it would be thrown out in court because it wasn't collected properly.

They have to have evidence of a crime before they can get a warrant. But once they have a warrant, they have the right to open "the box" of encryption.

I believe that also means they have the right to demand the keys to the box: your passwords.

Re:My goodness (0)

Anonymous Coward | about a year ago | (#43913351)

One might argue that the fact that brute force is theoretically possible (even if not feasible) means you are not actually giving information. Forcing the password out of you is a shortcut in acquiring the information, not truly essential. This distinction might have legal implications in any system.

Re:My goodness (0)

Anonymous Coward | about a year ago | (#43913129)

How about this? The encrypted data on the hard drive is no different than secrets I keep in my head. Only the encryption scheme is different. Just like I don't have to decrypt what is in my head for you, I don't have to decrypt the hard drive for you.

Re:My goodness (1)

fisted (2295862) | about a year ago | (#43913199)

If you think your thoughts are encrypted, i've got bad news for you.
Anyway, here's the good news: I'm selling these awesome protective tinfoil hats, for $20, a real bargain!

Re:My goodness (1)

Gr8Apes (679165) | about a year ago | (#43913407)

You are forced to open a box that may have data providing that you are guilty, but that information is already there and it's not new, you weren't forced to first create that data and then give it up, you are forced to open the data that existed already in a form that is not attached to you, it's independent of you, it is already existing outside of you.

IIRC, if you state you don't have the key, nothing else happens to you. Ball is in the prosecution's court. (unless, of course, they find the key on you or somehow prove you knew or should have known where the key was) With regards to encryption, the rules changed, and now you are held in contempt if you don't conjure this key out of thin air. Maybe he wrote it on a scrap of paper that he ate when they came for him, who knows. It shouldn't matter, according to previous stories, they should have enough to put him away for a long time.

Rights... (4, Insightful)

Anonymous Coward | about a year ago | (#43912529)

How much cash you got? :/

I hope the guy wins (-1)

Anonymous Coward | about a year ago | (#43912577)

I really hope the guy wins so I don't have to worry about having all those child porn in my hard drive.

Re:I hope the guy wins (-1)

Anonymous Coward | about a year ago | (#43912615)

Hi friend, do you know where I can download some nice lolitas?

Re:I hope the guy wins (0, Offtopic)

telchine (719345) | about a year ago | (#43912619)

THINK OF THE CHILDREN!!!

Re:I hope the guy wins (2, Funny)

Anonymous Coward | about a year ago | (#43912631)

Yeah, I'm always thinking of the children... *drool*

Re:I hope the guy wins (0)

Anonymous Coward | about a year ago | (#43912669)

Careful, or your hard drive will be next.

Re:I hope the guy wins (0)

Anonymous Coward | about a year ago | (#43912741)

But they kept telling me to think of the children!

The United Kingdom generously offers... (4, Informative)

Anonymous Coward | about a year ago | (#43912645)

...to extradite from the United States any pesky people who insist on their so-called rights to not decrypt their data and jail them for up to 2 years under section 3 of the Regulation of Investigatory Powers Act 2000 if they persist in pretending they're not guilty.

Robin Shellow (5, Insightful)

cffrost (885375) | about a year ago | (#43912647)

"I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. [...] The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0." — Robin Shellow

God damn right. I don't care what anyone says about lawyers — this woman speaks the truth, and she has my respect.

Re:Robin Shellow (1)

Black Parrot (19622) | about a year ago | (#43913531)

I'm sure the lawyer's motivation is pure as gold.

To play devil's advocate... (2)

Alioth (221270) | about a year ago | (#43912671)

Imagine we had this: an accused, who has a safe made from unobtanium (which needless to say, is as hard as Minecraft bedrock) with an unpickable lock. Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed? If this is the case, then why can't someone be ordered to turn over encryption keys in the case of encrypted data where there is a properly issued search warrant?

Re:To play devil's advocate... (0)

Anonymous Coward | about a year ago | (#43912707)

One of the parts here is that you can't force them to if it would be self incriminating. If you know the safe contained some bad things, but you weren't exactly sure whose safe it was, then you can't force somebody to give the key since it would right away prove them to be the owner of the safe, giving the investigators new information they didn't know yet.

I am not sure this counts in this case, it seems to me that its hard to claim hard disks aren't yours under certain circumstances.

Re:To play devil's advocate... (-1)

Anonymous Coward | about a year ago | (#43912709)

very sensible idea, i think there are many kiddie porn advocates on slashdots these days that somehow see this case as an assault on their "right" to do whatever pleases them.

pursuit of happiness (0)

Anonymous Coward | about a year ago | (#43913131)

"somehow see this case as an assault on their "right" to do whatever pleases them."
The right to pursue happiness.

Once upon a time that included marrying female children.. who bring men happiness by being nice pretty female human beings. Up untill 1880 in some states.

Now even the rich men commit suicide.

Re:To play devil's advocate... (0)

Anonymous Coward | about a year ago | (#43912711)

Because to find out what I had in that safe, you broke into my other safe made of something weaker than unobtanium. "Hey, he had illegal stuff in safe 1, safe 2 must have illegal stuff as well!"

Prove yourself box: hostage

Re:To play devil's advocate... (1)

gnasher719 (869701) | about a year ago | (#43912713)

Imagine we had this: an accused, who has a safe made from unobtanium (which needless to say, is as hard as Minecraft bedrock) with an unpickable lock. Can the accused be ordered to turn over the key if a search warrant to search the safe is properly executed? If this is the case, then why can't someone be ordered to turn over encryption keys in the case of encrypted data where there is a properly issued search warrant?

The same situation: If the police doesn't know for a fact that it is your safe and that you had access to it, and the fact that you can open it incriminates you, they couldn't force you. Imagine there's a gun inside that was used for a murder. A witness saw a person putting the gun in the safe but can't see who that was. The gun is wiped clean. It is without doubt the murder weapon, but there are no fingerprints on it that would prove who the murderer is. But by opening the safe, the police would have evidence against you - that's self incrimination. On the other hand, if the safe contents is evidence, like your phone which you used to record a video of you shooting the victim, then opening the safe is not self incriminating.

Re:To play devil's advocate... (0)

Anonymous Coward | about a year ago | (#43912721)

Assuming this is a personal case and not a corporate one they can not be made to turn over the keys.
It's up to the prosecutors to break into said safe, if they can't they are SOL.

It's not the case (2)

dutchwhizzman (817898) | about a year ago | (#43912805)

You can't force someone to hand over that key. Not now and not in the past. However, the police has the right to open the safe any way they find fit if there is a search warrant. If they open the safe and you get convicted based on evidence found in the safe, the damage to the safe is yours to pay for. If they find evidence inside the locked safe, it's found in a lawful way and is admissible as evidence.

If they opened the safe without a proper warrant, they would be liable for damages to the safe and anything found inside the safe would not be admissible as evidence in a court case. That is why there are warrants. They are not about forcing people to hand over keys.

As usual, rubbish article (4, Informative)

gnasher719 (869701) | about a year ago | (#43912693)

That judge didn't say "forced decryption of hard drive violates fifth amendment". The judge said "I'll look at the case and make a decision, and there will be no forced decryption until I make my decision".

Myself, I cannot see anything wrong with the original decision. "Fifth amendment" is about self incrimination in statements to police or to the court. This case is about being forced to give the police or court access to evidence.

If the police has a warrant to search your home, it isn't obviously clear whether you can be forced to open the door, and it doesn't matter in practice because the police is allowed to and will break your door, so the only practical difference is two minutes of work for the police, and a broken door for yourself. This situation is exactly the same, except that the door is unbreakable.

Imagine you stand in front of a house door, the police arrives with a warrant and ask you to open the door. You say "It's not my house, break the door if you like, but I don't have keys to let you in". There is no doubt that the police has the right to get in. But opening the door would prove that you have access to the house, so if the police doesn't know that, opening the door would be self incriminating. Not so if you are _inside_. The police would know that you have access, so opening the door is not self incriminating. Giving the police access to the evidence inside doesn't count as "self incriminating" and isn't protected by the fifth amendment.

And it's the same with an encrypted hard drive. You can't be forced to admit that you can decrypt the hard drive, if that knowledge, the knowledge that you _can_ decrypt, was incriminating. But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.

Re:As usual, rubbish article (1)

Nerdfest (867930) | about a year ago | (#43912753)

That assumes you have complete control over what goes on that drive as well though. Would the possibility of malware, etc, render that untrue, or irrelevant at least?

Re:As usual, rubbish article (0)

Anonymous Coward | about a year ago | (#43912757)

"except that the door is unbreakable. "
--
Except they've already proved it's not unbreakable (see drive #1), it just take a significant and extended effort.
You don't have to provide keys\combo for a safe, you don't have to open your door, and you don't have to give out your encryption keys to your hard drive.

Re:As usual, rubbish article (1)

wonkey_monkey (2592601) | about a year ago | (#43912833)

You don't have to provide keys\combo for a safe, you don't have to open your door, and you don't have to give out your encryption keys to your hard drive.

But can you - should you - be charged with obstruction and/or held in contempt of your court if you don't?

When I read about this story before, I thought the sticking point was not "whether or not any of the drives had any CP" but "do the drives belong to the accused?" They were only able to establish that to a high degree of certainty after decrypting the first hard drive.

Re:As usual, rubbish article (2, Interesting)

Anonymous Coward | about a year ago | (#43912785)

Currently there is no child porn. It doesn't exist. Nobody can take the contents of those hard drives and display child porn. Performing a mathematical transformation on it such that it becomes child porn is producing it. If defendant is made to produce child porn, he should have immunity from the results.

You don't have to open the door (5, Insightful)

dutchwhizzman (817898) | about a year ago | (#43912839)

If the police arrives with a warrant, you don't have to open the door for them. It is not a crime to not open that door. However, they have the right to knock it down and you can't claim damages that you may occur because of it. You don't have to actively assist the police in serving the warrant. As long as you are not actively obstructing them (putting up extra barricades, destroying evidence after they announced their warrant), you're not doing anything illegal.

If you know there is evidence against you on the encrypted device, you would be incriminating yourself by turning it over to the police. The police can presume there is evidence on the drive, but presumption is not proof. Once you hand over that evidence, it would be admissible and thus self incriminating.

Re:You don't have to open the door (2)

gnasher719 (869701) | about a year ago | (#43913019)

If the police arrives with a warrant, you don't have to open the door for them. It is not a crime to not open that door. However, they have the right to knock it down and you can't claim damages that you may occur because of it. You don't have to actively assist the police in serving the warrant. As long as you are not actively obstructing them (putting up extra barricades, destroying evidence after they announced their warrant), you're not doing anything illegal.

That's a good theory, but very unlikely that it was ever tested in court. Because as the situation stands, the police isn't going to court, they are just coming in to your house by force and all you got for not opening is a smashed door. What would happen if the police tries to get in without any success, because you happen to have a twelve inch steel door? In that case, I would think they would go to court and you would be ordered to open the door.

Re:As usual, rubbish article (2)

wonkey_monkey (2592601) | about a year ago | (#43912879)

But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.

Which is, contrary to the impression this summary gives, what I thought the sticking point was before the decryption of the first drive - not the absence or presence of CP. Once they decrypted the drive, they were (or so I've understood) able to show that the drives did belong to the accused, which hadn't established before.

Re:As usual, rubbish article (1)

ultranova (717540) | about a year ago | (#43912957)

Imagine you stand in front of a house door, the police arrives with a warrant and ask you to open the door. You say "It's not my house, break the door if you like, but I don't have keys to let you in". There is no doubt that the police has the right to get in. But opening the door would prove that you have access to the house, so if the police doesn't know that, opening the door would be self incriminating. Not so if you are _inside_. The police would know that you have access, so opening the door is not self incriminating. Giving the police access to the evidence inside doesn't count as "self incriminating" and isn't protected by the fifth amendment.

Imagine that it's not your house but your mind. Are you required to let the police in - that is, testify against yourself? If so, the Fifth Amendment is meaningless. And if yes, how is that any different from the house example? After all, in both cases you are being ordered to actively assist in gathering evidence against you. And that is true in the case of being told to decrypt your hard drive, too.

Re:As usual, rubbish article (1)

gnasher719 (869701) | about a year ago | (#43913123)

Imagine that it's not your house but your mind. Are you required to let the police in -

Your house and your mind are different things. That's why there are different laws.

Re:As usual, rubbish article (1)

Anonymous Coward | about a year ago | (#43913175)

Honestly, given the status of technology and what people can do with it (both police & citizens), it's a bit silly for the police to have to admit that they don't have a case against this guy without him decrypting his hard drives for them. Really??? There was nothing else? No IP logs, no internet purchases, no confessions from conspirators? It may make their job harder, but so be it. The police need to do a better job up front, not clamour for the ability to infringe people's rights later because WE WERENT DOING OUR JOBS AHEAD OF TIME.

Re:As usual, rubbish article (4, Interesting)

AmiMoJo (196126) | about a year ago | (#43913053)

I have lots of old encrypted data that I no longer remember the password for. Years of mail archives made in the 90s that I can't recall now. I keep them around in case I ever happen to remember and because they are only a few megabytes.

I also have a few old HDD lying around that are fully encrypted but which I destroyed the key files for. Formatting them takes a long, long time. Now the key is gone there is no way to decrypt them, so essentially they are full of random bytes. Lots of companies do this too, to avoid lengthy and expensive drive sanitizing.

Merely owning or having control over data is no proof that you know how to decrypt it.

Re:As usual, rubbish article (2)

gnasher719 (869701) | about a year ago | (#43913113)

I have lots of old encrypted data that I no longer remember the password for. Years of mail archives made in the 90s that I can't recall now. I keep them around in case I ever happen to remember and because they are only a few megabytes.

I also have a few old HDD lying around that are fully encrypted but which I destroyed the key files for. Formatting them takes a long, long time. Now the key is gone there is no way to decrypt them, so essentially they are full of random bytes. Lots of companies do this too, to avoid lengthy and expensive drive sanitizing.

As you say, old data, old hard drives. It could probably be established that these files were not modified for many, many years, and that the old hard drives were not touched for many years, so your claim that you can't decrypt them would be reasonable. Or you might have purchased a used drive on eBay yesterday, which happened to be encrypted. Same thing. If the drives were connected to your computer, then it's hard to say you don't have the password.

Re:As usual, rubbish article (3, Informative)

Anonymous Coward | about a year ago | (#43913427)

If the drives were connected to your computer, then it's hard to say you don't have the password.

I actually had an encrypted hard drive with forgotten key in my computer for years.
Theres was no reason to remove the old harddrive when I bought a new one and I didn't need the data so I eventually forgot the key.
Also, I think it is difficult to prove the last access time without decrypting the drive.

Re:As usual, rubbish article (2)

DeBattell (460265) | about a year ago | (#43913055)

I think hard drives should be considered as an extension of your brain, and thus as protected as the content of your brain.

Re:As usual, rubbish article (1)

garutnivore (970623) | about a year ago | (#43913109)

Your analysis is appreciated but, let's consider the following. I'm sure I have at least one old hard drive somewhere that I have effectively written off but I have not trashed for which I don't remember the encryption key nor have any record of the key.

Okay, so it *is* my hard disk but I cannot decrypt it. What then?

Re:As usual, rubbish article (1)

Virtucon (127420) | about a year ago | (#43913125)

You're mixing the 4th and 5th amendment rights here. The police without a warrant can assert in some cases that you allowed them into your home or to search your car. You have to be explicit and deny them access. They of course can force access into a home if there's a fear of evidence destruction or lives are threatened, the courts have ruled on that many times but stopping you on the street, say in the NYCPD pat downs is a 4th amendment problem because they are seizing you (temporary detainment) and searching you without reasonable suspicion.

your last statement I think is a bit off though.

And it's the same with an encrypted hard drive. You can't be forced to admit that you can decrypt the hard drive, if that knowledge, the knowledge that you _can_ decrypt, was incriminating. But once it is known that the hard drive is yours, then decrypting the hard drive is not self incriminating.

Judges have this neat power of holding you in contempt of their orders. If you encrypted something on a device then it's reasonable for a judge to assume that you can decrypt it as well. The point of compelling you to provide the information, the key, is what goes against self incrimination and in this case, the feds, initially, couldn't decrypt the hard drives so they filed a petition to get the judge to compel the individual to help them by giving them the keys. That's information that's not in the open, it's in one's head usually (or if he was an idiot, written down in his desk drawer somewhere). This case, I believe, opens up not only the self incrimination aspect because the feds, initially only had a suspicion of breaking the law, he wasn't charged with anything and they just wanted to search through his data for evidence of crimes. If a judge under those conditions can compel you to give up your decryption keys, when you're not charged with a crime is unjust and a violation of our rights. Now if the Feds had other Child Porn people give depositions or testimony that said "I got the stuff from him" and they have a trail, Internet logs, e-mails etc. then I can see where the judge could compel and individual to give up the info. In that case if he still refuses to do so there's a nice jail cell available where he can sit until he does what the judge orders.

There was a case back in the 80s called the Wonderland Murders [wikipedia.org] in LA. Part of that case involved a porn actor named John Holmes who was accused to be one of the murderers in that case. He was held in contempt for 110 days for refusing to cooperate with authorities or testifying. The guy was nuts, like keeping pet bugs while in jail [wordpress.com] but he never broke and even though there was other evidence that he was involved, he never was convicted nor did he ever give testimony. The police if they'd had his blood stained clothes or other evidence probably would have been able to get a conviction but in this case, without his cooperation they had no way of putting him away.

How is this similar? He had knowledge of what probably went on in these murders and did tell the authorities what he knew he would have probably been convicted of the actual crimes or conspiracy. The same thing IMO applies here with compelling you to give away your encryption keys to your digital information. You may have something incriminating there not related to what the authorities are investigating, but once you give away that information, i.e., decryption keys then whatever they find can be used as possible evidence against you. In this case, a judge has ruled again in favor of the now accused and his lawyer is going to push to suppress what was found. It's been done before when police obtain evidence illegally, without probable cause. Locking the door to your house, encrypting your data to me are the same thing, it's just that the cops don't have great locksmiths or door busters when it comes to the latter.

TFA (-1)

Anonymous Coward | about a year ago | (#43912715)

"The decrypted contents contained child pornography"
From what I understand that is not necessarily a fact yet, but a claim of the feds, and they described what they found as "what constitutes cp", which may not be as cut and dry as it would seem given the stretching that goes on is some of these cases.

Anyway good on the judge who could see through the smoke screen and stop the raping Feldman's 5th Amendment protections, at least for now.

Re:TFA (0)

Anonymous Coward | about a year ago | (#43912933)

When the EFF defended the group that was making the battle.net daemon, in the loss part of the explanation was that as the computer moves data around between memory and cpu, those are copies, and instances of legally liable copyright infringement. Why is this relevant?

Any sequence of numbers (bytes) can be made into child porn given a sufficient transformation. The instant of doing such transformation is the criminally liable point in time. Otherwise everyone is guilty of possessing child porn, since any file can be transformed into child porn.

The government and even one judge is asking him to do a specific transformation without making him immune from the results. It's insane to argue the 5th amendment does not protect him.

Re:TFA (1)

MysteriousPreacher (702266) | about a year ago | (#43913027)

This doesn't make sense. Random bits are of the same as bits that can be decrypted. To follow your reasoning, taking a picture and slicing it in to tiny jigsaw piece would be equivalent to blank paper and bottles of ink.

Re:TFA (1)

91degrees (207121) | about a year ago | (#43913301)

The law doesn't deal with arbitrary mathematical abstractions. It's about practical matters and intent. The suspect (if guilty) intentionally possesses child pornography and has changed it in a manner that a normal technique will revert it back to its original state.

Can't say I agree with this one (3, Interesting)

Millennium (2451) | about a year ago | (#43912913)

Decrypting a hard drive is no different from letting the police into your house for a search: something the law has the power to order a person to do, provided that the proper warrants are legally obtained. It has long been understood that this is not self-incrimination, even if evidence is later found.

Obviously, decryption orders should be held to the same limits as any other search, with the same requirements for warrants and the same limits. It can be argued that, given the government's recent propensity for warrantless searches, people's fear is reasonable. But calling a properly-warranted and properly-limited decryption order "self-incrimination" is more than a bit of a stretch. Besides which, including it under the umbrella of searches provides new avenues through which to attack the unethical practice of warrantless searches, which must indeed be stopped.

Re:Can't say I agree with this one (0)

Anonymous Coward | about a year ago | (#43913009)

If you want to live in a nation where the police have the power to snoop everything you do, everywhere, in meatspace and online, please go start your own nation and stop letting authoritarians ruin mine.

Here's an incredibly simple rule that you can follow: the police and feds never have your interests in mind. You are a suspect, permanently, and you will be incarcerated and neutralized when they get to you.

Re:Can't say I agree with this one (1)

blackraven14250 (902843) | about a year ago | (#43913073)

Have you ever wondered why you're free to post this in public, and haven't been neutralized yet? I'm thinking it might be because your view of the state of the world isn't based in reality.

Re:Can't say I agree with this one (1)

Millennium (2451) | about a year ago | (#43913091)

So which part of my post did you miss: the part where I insisted that these searches need to be properly warranted, or the part where I asserted that warrantless searches need to be stopped? Admittedly, I didn't mention the need for individualized suspicion as I normally do, but even without that, I in no way called for your straw argument of absolute ubiquitous search powers.

Re:Can't say I agree with this one (1)

moeinvt (851793) | about a year ago | (#43913201)

I disagree. If they have a warrant, they can search the data on the hard drive by taking possession of it. The owner should be under no obligation to facilitate their search.

If they execute a search warrant on your home, you don't have to tell them where any of your possessions are located. If you have an effective hiding place that frustrates their search, so be it.

They're pulling the wool over the judge (2, Informative)

Anonymous Coward | about a year ago | (#43913361)

If they found CP on the decrypted drive as they claim, then why do they need the rest decrypted to get a case?

IMHO, the wording was telling:

"The storage device was found to contain 'an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders,' approximately 707,307 files (among them numerous files which constitute child pornography)"

It sounds like a normal backup of a normal PC and 'up-skirts' shots of Hermione Granger he might be able to present as child porn in sound bits like this, but apparently he knows its not enough to get a conviction because he wants the other drives decoded.

Really defendant should not be punished for refusing to help in his conviction and if their claim his true, he wouldn't need to be punished for that, because they'd already have the evidence they seek. So they DON'T have the evidence and they're simply trying to pull the wool over the judges eyes.

If you let the Fifth go 'for the children', then they'll take it for everyone all the time. It will be an extra charge to be added to the sentence.

Re:Can't say I agree with this one (1)

Anonymous Coward | about a year ago | (#43913405)

Decrypting a hard drive is no different from letting the police into your house for a search: something the law has the power to order a person to do, provided that the proper warrants are legally obtained. It has long been understood that this is not self-incrimination, even if evidence is later found.

Actually, you don't have to let the police in. They are allowed to break in, though. Which is similar to the hard drive issue: You shouldn't have to let them in, but if they can break the encryption, the data is admissible.

Another analogy: If the police have a warrant to search your house for drugs, and they ask you where the drugs are, you are under no obligation to tell them. They have to do their own damn search. Similarly, you shouldn't be under any obligation to make their search of your drive easy on them.

What were they THINKING? (2)

dave_leigh (67481) | about a year ago | (#43912949)

Even the discovery of fingerprints on a smoking gun at a crime scene does not eliminate someone's right to remain silent; so I have no idea what that "different judge" was thinking. He certainly wasn't thinking of due process.

Re:What were they THINKING? (1)

blackraven14250 (902843) | about a year ago | (#43913083)

If they discover fingerprints at the crime scene, with no gun present, they can get a warrant to search your house for the gun.

Re:What were they THINKING? (0)

Anonymous Coward | about a year ago | (#43913379)

If they discover fingerprints at the crime scene, with no gun present, they can get a warrant to search your house for the gun.

What does this analogy have to do with this?

A better analogy is the police get a warrant to search my home and find a bunch of papers written in a made-up language that only I can translate. Does the warrant somehow force me to translate those papers into English for you just because I'm the only one who can read it?

Makes sense to me. (1)

Anonymous Coward | about a year ago | (#43912997)

I would wager that the quantity of child pornography that he possesses could determine what extent his final charges are, yes? Therefore, wouldn't it make sense that he would further incriminate himself by giving up that information? So it makes sense to me that he should still retain that protection.

Re:Makes sense to me. (2)

gnasher719 (869701) | about a year ago | (#43913505)

I would wager that the quantity of child pornography that he possesses could determine what extent his final charges are, yes? Therefore, wouldn't it make sense that he would further incriminate himself by giving up that information? So it makes sense to me that he should still retain that protection.

Further evidence is incriminating, absolutely. But it is not self-incriminating. If the police ask him "is there CP on that encrypted drive", answering "yes" would be self incriminating. To see the difference between "incriminating" and "self-incriminating", a very simple test: If he says "I am guilty", and a policeman says "he is guilty", is it the same thing? No. One is a confession, one is just an unproven statement. So if he said that, it would be self incriminating. If he decrypts the hard drive, or a policeman decrypts the hard drive, is it the same thing? As far as evidence on the hard drive is found, no. Therefore, giving the police access the the encrypted data is not self incriminating. But if the hard drive contains lots of CP, but no evidence whatsoever that it is his CP? In that case, the fact alone that he decrypted the hard drive shows he had access to it, while a policeman encrypting it (with the help of a huge computer, or a password given to him in an anonymous phone call) doesn't prove it. Therefore "self incriminating". But as the previous judge said, they _know_ it is his drive. Therefore, no self incrimination.

Your Crazy (1)

Murdoch5 (1563847) | about a year ago | (#43913179)

He shouldn't be forced to de-crypt his drives because suspected illegal material might be inside them. If police manage to break the encrypted volumes and find illegal material then they have proper reason to assume the other volumes contain the same and hence they can ask him to de-crypt them.

I'm a little confused how anyone can see this differently, the fifth amendment is the right against self incrimination and as long as he doesn't have to open the volume when none of them have been open he hasn't incriminated himself. The second police got inside one of them he is no longer self incriminating himself because at that point he's a criminal, he's guilty, so the fifth amendment doesn't apply anymore. It's pretty simple.

If you've got nothing to hide....MPAA (0)

Anonymous Coward | about a year ago | (#43913275)

An interesting side note to this, MPAA encrypt all their emails.

The Anton Vickerman SurfTheChannel.com case Remember that Anton complained about his appallingly biased judge, who decided a 'fraud' had been committed (fraud?? WTF) and Anton attached the background documents and emails:
http://stc.occupyuk.co.uk/

If you look at the documents you can see email exchanges between MPAA staff, and they are heavy users of PGP encryption,
https://stc.occupyuk.co.uk/misc762/

(You might have to accept the sites self signed certificate):
https://stc.occupyuk.co.uk/misc762/MPAA_Emails_debeasi_cooperation.pdf

"MPAA has implemented an email encryption system using PGP... after November 2005 you will be required to...."

I thought it was interesting they need to encrypt all their email discussions. If you've nothing to hide then.... well of course everyone should be hiding everything as a matter of self protection, even the MPAA know this.

A way to genuinely be unable to decrypt your HD (5, Interesting)

Anonymous Coward | about a year ago | (#43913299)

Here's what you do:
  1. 1) Get a stack of ~50 non-sequential, well-used one-dollar bills.
  2. 2) Shuffle them into a random order. Store them in the desk drawer next to your computer.
  3. 3) Your password to your TrueCrypt drive is the 100-digit number formed by taking the two least significant digits of each bill in order. When you find yourself starting to remember the password, shuffle the bills and change your TrueCrypt password. For maximum randomness, make sure you have 50 unique sets of digits.
  4. 4) What are the odds that a cop who finds a small stack of unmarked bills will allow them to enter into evidence? Much more likely, they'd simply vanish in the search.
  5. 5) Should they enter into evidence, what are the odds that they'll stay in order?
  6. 6) If the bills vanish, you have 10^100 possible passwords, a ~300-bit number. If they make it into evidence but scrambled, you have 50!, a ~200 bit number, as long as you made sure you had no duplicate digit sets.
  7. 7) You can always plausibly claim that either (4) or (5) happened, and thus you can't give up your password, as much as it pains your sense of justice to be unable to help the prosecutor.

Re:A way to genuinely be unable to decrypt your HD (4, Interesting)

deadweight (681827) | about a year ago | (#43913521)

Best part is you don't have to DO any of it but have the bills and claim you did LOL

And it doesn't matter... (-1)

Anonymous Coward | about a year ago | (#43913419)

Since they were able to decrypt one of the drives that had the evidence they needed...

The guy is screwed. Be sure to send him to jail with a t-shirt that reads "I'm a pedophile - please rape me repeatedly"

What if there is evidence of murder on his drives? (1)

gatkinso (15975) | about a year ago | (#43913433)

A murder that is not related to child porn. For him to decrypt those drives, he would be incriminating himself for the murder.

Can't remember? (3, Interesting)

onealone (996027) | about a year ago | (#43913487)

In cases like these, what's to stop the defendant from saying they don't know the password, or can't remember?

He will be replaced soon. (3, Insightful)

Lumpy (12016) | about a year ago | (#43913529)

A judge that defends the constitution is not desirable to the Republicans or the Democrats. He is an enemy to both parties and will be replaced after this. I think the judge is a hero, but in the USA today, that is career suicide to not let the government trample any and all rights.

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