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Mass. Supreme Court Says Defendant Can Be Compelled To Decrypt Data

Unknown Lamer posted about 4 months ago | from the wrench-helps dept.

Encryption 560

Trailrunner7 (1100399) writes ... Security experts have been pounding the drum about the importance of encrypting not just data in transit, but information stored on laptops, phones, and portable drives. But the Massachusetts Supreme Judicial Court put a dent in that armor on Wednesday, ruling that a criminal defendant could be compelled to decrypt the contents of his laptops. The case centers on a lawyer who was arrested in 2009 for allegedly participating in a mortgage fraud scheme. The defendant, Leon I. Gelfgatt, admitted to Massachusetts state police that he had done work with a company called Baylor Holdings and that he encrypted his communications and the hard drives of all of his computers. He said that he could decrypt the computers seized from his home, but refused to do so. The MJSC, the highest court in Massachusetts, was considering the question of whether the act of entering the password to decrypt the contents of a computer was an act of self-incrimination, thereby violating Gelfgatt's Fifth Amendment rights. The ruling.

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I lost the password (5, Funny)

pjh3000 (583652) | about 4 months ago | (#47325109)

I lost the password in a hard drive crash.

Re:I lost the password (5, Funny)

pjh3000 (583652) | about 4 months ago | (#47325127)

... the hard drive was recycled.

I lost the password (5, Insightful)

Anonymous Coward | about 4 months ago | (#47325205)

if it's good enough for the IRS....

Re:I lost the password (1)

Anonymous Coward | about 4 months ago | (#47325283)

The judge thinks you're lying, Contempt of court. Go directly to jail, Do not pass go, do not collect 200$.

Re:I lost the password (2)

pjh3000 (583652) | about 4 months ago | (#47325325)

So why isn't Lerner in jail?

Re:I lost the password (0)

Anonymous Coward | about 4 months ago | (#47325363)

That only applies to people who have no authority that could ever possible impact the judge in question.

Re:I lost the password (2, Informative)

Enry (630) | about 4 months ago | (#47325539)

She personally didn't lose the e-mail and much of it has already been recovered.

Re:I lost the password (1)

bobbied (2522392) | about 4 months ago | (#47325649)

She may end up there, but I'm guessing she was not the one who ordered the drives destroyed (at least she didn't document the order).

Re:I lost the password (2)

ZombieBraintrust (1685608) | about 4 months ago | (#47325387)

He already admitted he could decrypt it. So not really an issue here.

Re:I lost the password (0)

Anonymous Coward | about 4 months ago | (#47325559)

He already admitted he could decrypt it. So not really an issue here.

Yes... now he just needs to make a 'good faith effort' to actually attempt to decrypt it as ordered, but then 'find out', that, for some strange reason he is no longer able to decrypt it, and perhaps the encrypted files had been damaged or not gathered intact.

He can then tell them "the password" as he "remembers" it, and valiantly fail in his efforts to help the authorities break into the encrypted files.

Re:I lost the password (3, Insightful)

sycodon (149926) | about 4 months ago | (#47325401)

Can they compel you to unlock a safe? A safe Deposit box? While authorities can get into these without your help, what if they couldn't?

Electronic information is directly analogous to paper. Information is information regardless of how its stored.

Re:I lost the password (3, Informative)

jythie (914043) | about 4 months ago | (#47325441)

They can indeed compel you to unlock a safe, just like they can compel one to hand over documents during discovery.

Re:I lost the password (1)

Anonymous Coward | about 4 months ago | (#47325571)

No, they will just open the safe themselves. They are welcome to try to open my truecrypt volumes.

Re:I lost the password (1)

arbiter1 (1204146) | about 4 months ago | (#47325587)

Well the safe is different since its a physical object with a physical lock and/or key. The key for encrypted data is stored in your head which the 4th protects against data stored in your head. But that has been attacked a ton recently.

Re:I lost the password (4, Insightful)

jythie (914043) | about 4 months ago | (#47325641)

A safe can also have a combination lock or keypad, more frequently then a physical key.

Re:I lost the password (4, Insightful)

grahamm (8844) | about 4 months ago | (#47325639)

But having opened the safe, can they force you to 'decode' the entries on a paper document which are written in a code or cipher? If not, then they should not be able to force you to decrypt an electronic document which is written in 'code'.

Re:I lost the password (0)

Anonymous Coward | about 4 months ago | (#47325455)

So you have to help the authorities if they can't decipher your handwriting?

Re:I lost the password (1)

mythosaz (572040) | about 4 months ago | (#47325589)

This is, essentially, the crux of the issue - are encrypted records and passwords the analog of combination locks on safes?

Except, of course, they have to prove you can (2)

i kan reed (749298) | about 4 months ago | (#47325115)

I mean, all you have to say is that you lost the actual key and cannot comply.

Re:Except, of course, they have to prove you can (1)

Anonymous Coward | about 4 months ago | (#47325173)

From TFS:

He said that he could decrypt the computers seized from his home, but refused to do so.

Re:Except, of course, they have to prove you can (0)

HornWumpus (783565) | about 4 months ago | (#47325235)

He should have remained silent. Being a lawyer he should have known that.

Re:Except, of course, they have to prove you can (2)

Penguinisto (415985) | about 4 months ago | (#47325421)

He should have remained silent. Being a lawyer he should have known that.

Sometimes lawyers think they're smarter than the average person in matters of law, and often in demonstrating their 'prowess' end up proving that they're not. It happens.

Re:Except, of course, they have to prove you can (4, Insightful)

Sarten-X (1102295) | about 4 months ago | (#47325439)

As an accused boot-licking pro-establishment government-and-big-business shill, I agree.

As a relatively sane individual who tends to think for myself, I also agree.

As someone with passing familiarity with 4th-amendment case law, I also agree.

This guy was a first-class idiot. An encrypted hard drive is little different from a locked safe. A court can order you to open it to reveal evidence, but the police need sufficient probable cause to convince a judge to issue that order. Saying "All the evidence is in there and I have the key" is pretty convincing probable cause that there's important relevant evidence in the safe (or disk). Saying nothing is a good way (and the only really safe way, as far as I know) to ensure that you're not giving the cops any additional assistance in proving your guilt.

Re:Except, of course, they have to prove you can (5, Interesting)

Penguinisto (415985) | about 4 months ago | (#47325357)

From TFS:

He said that he could decrypt the computers seized from his home, but refused to do so.

Just because he was a dumbass doesn't mean the rest of us have to be.

But let's say you want to be honest - here's a conceptual idea:

Encrypt your stuff on a drive with two-factor auth. The first is a key that expires after x number of days, renewing the expiration every time you access it (let's say 3 to 14 days, tops.) The second factor is a passphrase. Shouldn't be hard to cook up if you use a high-bit-count SSL certificate as your key, and the encryption software checks the date. Keep the key on a separate but random-looking USB stick, SD chip, whatever. When you're not using it, stick it in a camera, unused smartphone, or similarly hidden. To prevent BIOS/EFI tinkering, insure that the encryption software double-checks that the system time is within the window (between last successful access and new expiry date) on boot, and destroys the key if the date is outside that window. Same with insuring that the HDD is in the same hardware it originally sat in, destroying the key if the software detects that a series of MAC addys and serial numbers don't match up.

After the keypair expires (after all, you've been in jail all this time and unable to access it, so...) you can truthfully say that the data is unreachable by any means (though I do suggest that your statement not end with the phrase "...so suck it, copper!") Of course, this means *you* can't access it either, but one would hope you had a backup of the data stashed somewhere beyond the reach of a warrant or the authorities' knowledge, yes?

Fun mental exercise either way. :)

Re:Except, of course, they have to prove you can (1)

jythie (914043) | about 4 months ago | (#47325467)

That would be a risky thing to do.

Destruction of evidence is a separate crime, and simply having some type of electronic dead man's switch on it does not get one off the hook.

Re:Except, of course, they have to prove you can (1)

spacepimp (664856) | about 4 months ago | (#47325335)

Sure, but lying is perjury. He shouldn't be compelled to incriminate himself according to the fifth amendment.

Re:Except, of course, they have to prove you can (1)

i kan reed (749298) | about 4 months ago | (#47325403)

Again, I said they'd have to prove it, not that there wasn't leverage available.

The dog ate my homework. (1)

westlake (615356) | about 4 months ago | (#47325605)

I mean, all you have to say is that you lost the actual key and cannot comply.

Didn't work for Calvin. It won't work for you.

The lie ends in a citation for contempt and a stay in a Ricker's Island holding cell until your memory improves, or hell freezes over, whichever comes first.

Lois Lerner Method (5, Insightful)

bhlowe (1803290) | about 4 months ago | (#47325135)

Take the 5th and say your computer crashed. That works for the IRS.

Re:Lois Lerner Method (1, Insightful)

gstoddart (321705) | about 4 months ago | (#47325313)

You don't get to take the 5th, apparently. The cops have the computer in their possession.

So, they will detain you until you provide the information they require to convict you.

But if they have to, they'll convict you of failing to provide the information they need to convict you, and then continue to detain you.

"Ense petit placidam sub libertate quietem " (By the sword we seek peace, but peace only under liberty)

Except when we don't.

Papers please, comrade. Cooperation is mandatory.

Re:Lois Lerner Method (0)

Anonymous Coward | about 4 months ago | (#47325621)

Papers please, comrade.

Glory to Arstotzka.

Shoulda had a hard drive failure (1)

Anonymous Coward | about 4 months ago | (#47325141)

We all know the leading cause of hard drive failure is subpoenas.

Five dollar wrench attack (0)

Anonymous Coward | about 4 months ago | (#47325151)

You can 'compel' all you want, but we know what's really happening.

Corrupted (0)

Anonymous Coward | about 4 months ago | (#47325159)

These encrypted drives are corrupt; they will not accept my password. Sorry.

Re:Corrupted (1)

Applehu Akbar (2968043) | about 4 months ago | (#47325299)

Nice try, but if the Fifth Amendment does not apply in Massachusetts, then the Eight wouldn't apply either.

The relevant part (1)

robinsonne (952701) | about 4 months ago | (#47325171)

The relevant part of the ruling:

We now conclude that the answer to the reported question is, "Yes, where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators." Accordingly, we reverse the judge's denial of the Commonwealth's motion to compel decryption.

So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)

Re:The relevant part (2)

SteWhite (212909) | about 4 months ago | (#47325199)

Exactly - another key sentence in there is:

"In the Commonwealth's view, the defendant's act of decryption would not communicate facts of a testimonial nature to the government beyond what the defendant already has admitted to investigators. As such, the Commonwealth continues, the defendant's act of decryption does not trigger Fifth Amendment protection."

So if he had not admitted anything already and had refused to decrypt, the ruling may have been different.

Re:The relevant part (1)

funwithBSD (245349) | about 4 months ago | (#47325219)

In other words, he "testified" on the matter, and thus could not claim 5th midstream.

Re:The relevant part (1)

Anonymous Coward | about 4 months ago | (#47325331)

Agreed. The kicker for me is this:

"The facts that would be conveyed by the defendant through his
act of decryption--his ownership and control of the computers and their contents, knowledge of the
fact of encryption, and knowledge of the encryption key--already are known to the government
and, thus, are a "foregone conclusion." [FN14] The Commonwealth's motion to compel decryption
does not violate the defendant's rights under the Fifth Amendment because the defendant is only
telling the government what it already knows."

Basically the guy screwed up by talking to the police in the first place. As a lawyer he should have known better! If he had just kept his mouth shut, the police would not have _known_ that his computers contained documents relevant to their investigation. They could have _speculated_ that his computers contained such information but that probably would have resulted in an entirely different ruling. Looks like his arrogance got the better of him.

Re:The relevant part (3, Insightful)

sabri (584428) | about 4 months ago | (#47325377)

So if he had not admitted anything already and had refused to decrypt, the ruling may have been different.

That is irrelevant. The question at hand is whether or not the Government can force you to provide evidence against yourself in a criminal case. Now I'm just a stupid immigrant, but my understanding from the 5th Amendment is that nobody "hall be compelled in any criminal case to be a witness against himself". I don't care how much the police think they know. If they need his harddrive, their case is not solid and the suspect should not be required to provide incriminating evidence.

Being forced to provide evidence against yourself pretty makes it the Soviet Republic of Massachusetts.

Re:The relevant part (1)

Anonymous Coward | about 4 months ago | (#47325471)

How is providing the encryption keys any different from complying with a search warrant for paper files. The constitutional prevents "unreasonable search and seizure". Of the government has a valid reason for the search and the judge concurs by issuing a warrant the defendants rights have been respected.

Re:The relevant part (0)

Anonymous Coward | about 4 months ago | (#47325615)

This is more like someone who burned the papers but then claimed to memorize their contents.

Then the government is able to say that they "know" that he "remembers" thus he should be given a stack of black paper and a pen, then forced to rewrite the incriminating evidence against him.

The true contents of the drive are "scrambled" just as paper would be after burnt. The key is analogous to simply rewriting the documents. Without his memory, the contents are not available.

Re:The relevant part (2)

jythie (914043) | about 4 months ago | (#47325477)

You can not be forced to testify against yourself, but you can be forced to hand over evidence that exists.

Re:The relevant part (2)

suutar (1860506) | about 4 months ago | (#47325543)

from what I've read, the interpretation is that you may not be forced to _create_ evidence that may be used to convict you at the request of a government entity. Answering a question from a government employee is creating statements that didn't already exist. Filling out a form is creating documents that didn't exist. Evidence that they already have can be followed up. Evidence that is known to already exist can be demanded (blood samples, DNA samples, papers in a safe), and the fifth won't help because you're not creating anything.

Following this interpretation, data on the drive already exists. Taking the fifth when asked if you know the password may be allowable, but once knowledge of the password has been admitted, it's down to the "demanding evidence that exists" category and the fifth doesn't help.

I'm not saying that's the ideal answer, but there is a certain logic to the position.

As a lawyer he should have known better (4, Informative)

Arker (91948) | about 4 months ago | (#47325487)

The ruling appears flawed, I sympathize with the dissent, but yeah. This guy screwed himself, in typical lawyer fashion, with excess arrogance.

He did not have to tell the police anything here, he has probably lectured his clients many times on exactly why they should never talk to the police, does not matter if you have nothing to hide, does not matter if you think you have done nothing wrong, and if you have done something but think you can talk your way out of it you are a fool. Ask for your lawyer then shut your mouth, and do not answer any questions, I dont care if they ask you about the weather, the reply is 'ask my lawyer.'

From the language used in the opinion, if he had simply shut his mouth and not started bragging/volunteering information, he would be in a very different situation today.

Re:The relevant part (2, Funny)

Anonymous Coward | about 4 months ago | (#47325327)

So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)

Guess I'm safe then. My decryption key is "testimony". Lowercase, no special characters or digits.

Different from a subpenoe? (0)

Anonymous Coward | about 4 months ago | (#47325443)

How is this really different than subpoenaing a set of documents? I mean, the court is compelling someone to produce evidence that they have. There are some tails ... is losing/destroying the key destroying evidence? Perhaps. However, I don't see an order to decrypt any different than an order to provide evidence. I mean, right from the 4th "... secure in their ... papers ... unless ..." If there's probable cause adequate to compel the documents, then compelling the decryption thereof is no more an intrusion to the person's security. Now, going further, only the particular documents that are described in the warrant may be copied and searched, but that's a technical measure.

Not far wrong. (1)

westlake (615356) | about 4 months ago | (#47325445)

So what they're saying is that since the decryption key isn't "testimony" it doesn't count under the 5th Amendment. (IANAL)

The roots of the privilege against self-incrimination lie in use of torture to extract confessions, but judges remain firmly convinced that all relevant evidence should be admissible in court. They do not like carving out exceptions.

in what way is this not self-incrimination (0)

Anonymous Coward | about 4 months ago | (#47325181)

just as with a confiscated safe. Authorities should be forced to crack into it themselves.

Re:in what way is this not self-incrimination (2)

pixelpusher220 (529617) | about 4 months ago | (#47325225)

A key is a physical object and as such can be compelled. You aren't participating in your testimony by providing the physical item; you have to provide LOTS of other information during disclosure so it's not like you can't be compelled to provide something that physically exists.

The difference here is that the key is theoretically in his mind and so he would have to participate in providing that; hence why it's generally been found that keys can be compelled but combinations on locks can't and similarly passwords can't be.
BR Of course the amendments have been eroding for some time now...

Re:in what way is this not self-incrimination (1)

Ceriel Nosforit (682174) | about 4 months ago | (#47325247)

Seems like he had already incriminated himself when he talked to the cops. That's a strange thing for a lawyer to do to begin with...

in what way is this not self-incrimination (0)

Anonymous Coward | about 4 months ago | (#47325345)

just as with a confiscated safe. Authorities should be forced to crack into it themselves.

According to this ruling, if I tell the police that I keep records of 'X' in my safe, I can be compelled to open it for them. If I keep my big mouth shut, which is what this guy should have done, then they may be forced to crack it.

Ruling doesn't change much. (5, Informative)

Joe Gillian (3683399) | about 4 months ago | (#47325185)

If you read the ruling, the court admits that the only reason they said the defendant could be compelled to decrypt his data was because he had already admitted to the police that he was involved in the case, and that the details of his involvement were on the hard drive. I'm sure if he had kept silent the entire time and told them nothing, it would've been a different story.

Re:Ruling doesn't change much. (3, Funny)

rahvin112 (446269) | about 4 months ago | (#47325251)

You would think a lawyer would know better than to talk to the police.

Re:Ruling doesn't change much. (2)

Nyder (754090) | about 4 months ago | (#47325253)

If you read the ruling, the court admits that the only reason they said the defendant could be compelled to decrypt his data was because he had already admitted to the police that he was involved in the case, and that the details of his involvement were on the hard drive. I'm sure if he had kept silent the entire time and told them nothing, it would've been a different story.

I don't agree. Even if he admitted he as involved, giving up any evidence of his involvement is self-incrimination. They don't know how much he was involved and his evidence would show that. Obviously if he gives it to them, it will show exactly what he was doing, thus proving he was guilty, which would be self-incrimination if he gives it.

They need to prove he broke the law with other evidence, then what he has encrypted, because legally, they aren't allowed to have him give up the info.

Re:Ruling doesn't change much. (4, Informative)

Rary (566291) | about 4 months ago | (#47325627)

You may not agree, but it seems to be well established in law that once you admit to the crime and identify the existence and location of evidence, you've waived your 5th Amendment right.

Re:Ruling doesn't change much. (1)

pixelpusher220 (529617) | about 4 months ago | (#47325269)

I haven't RTFR but while yes he's said he's involved, I wouldn't expect he'd have to tell them WHAT his involvement was...that's the prosecutions job.

The ruling (from accounts) seems to be separating the providing of the password from the contents of the drive - which is an unreasonable search. If they already know what he's done from what he's said, they could easily give him immunity for anything else found on the drive except what backs up what he's already said - then there's no 5th violation.

Also generally speaking, the warrant to search a drive has to be pretty damned specific, so if they already know what he did...it seems odd to request access to the drive.

Re:Ruling doesn't change much. (0)

Anonymous Coward | about 4 months ago | (#47325351)

Now prove the NSA didn't install a dummy password prompt and the hard drive doesn't "decrypt" to whatever the fuck they want it to.

There is no such thing as digital evidence anymore.

WTF? How is this not self incrimination? (1)

istartedi (132515) | about 4 months ago | (#47325213)

Next stop, SCOTUS and get new lawyers if they don't want to take you there.

Re:WTF? How is this not self incrimination? (3, Insightful)

0123456 (636235) | about 4 months ago | (#47325239)

It's not self-incrimination in the same way that the intersate commerce clause gives the Federal government the power to regulate absolutlely anything that might have any impact on interstate commerce even if it never leaves your house.

That is, it's clearly a blatant violation of the Constitution, to everyone but lawyers.

Re:WTF? How is this not self incrimination? (1)

gatkinso (15975) | about 4 months ago | (#47325277)

He already incriminated himself when he told the cops that there was evidence on the encrypted drives.

Re:WTF? How is this not self incrimination? (0)

Anonymous Coward | about 4 months ago | (#47325395)

Well, it's just like if you told the cops that you had indeed been around the crime scene at the time they asked you about, and so they're allowed to FMRI your memories out about that period of time to prove you're guilty.

Totally not self incriminating. The "self" has been redefined to mean: A collection of molecules that you used to be, but are not now.

Face it ... (-1, Flamebait)

gstoddart (321705) | about 4 months ago | (#47325255)

You have no constitutionally protected rights.

Governments don't give a damn about your rights, they care about their rights.

You're just a meat puppet, and what you want is meaningless.

As soon as you decide there is one class of thing where you can't refuse to provide the information to law enforcement, there's pretty much nothing left.

Because sooner or later someone will make the argument that if you can be compelled to enter your password, then you can also be compelled to tell us you're guilty, or testify against your spouse, or pretty much any damned thing.

This whole freedom was an interesting experiment. Now, we move onto the fascism and oligarchy.

Let the dystopian future begin.

Re:Face it ... (0)

Anonymous Coward | about 4 months ago | (#47325389)

I'd like to get a bill on Congress that mandates that U.S. citizens must house military personnel in their homes at their own expense. It's unconsitutional of course, but when did that ever stop anyone?

Re:Face it ... (1)

darkmeridian (119044) | about 4 months ago | (#47325517)

That's pretty edgy and cool but it's also completely wrong. Read the decision. Let's start with the simple notion that the Fifth Amendment protects you against self-incriminating testimony, but it is not an absolute bar against all kinds of self-incrimination. The court can still compel you to provide non-testimonial aid in their prosecution of you. For instance, the court can get a blood test to show that you were drunk while driving, or swab your cheek to test for DNA, get an example of your voice to play to witnesses, to have you participate in a line up, provide a sample of your handwriting, a sample of your hair, putting on a costume that the suspect was wearing, etc. If this were not the case you'd never be able to convict anyone of any crime.

The defendant in this case was read his Miranda rights. He said that the computers were encrypted, and that he could decrypt the files but would not do so. That doomed him. The court said that decrypting the hard drive was not testimonial in nature. If he had shut the fuck up and said nothing, then the court would probably would have denied the prosecutor's motion because decrypting the drive would be an admission that he knew and owned the contents of the drive. But this fuckhead had already bragged to cops that he could decrypt the data but wasn't going to do so. Thus, there was no self-incrimination.

Re:Face it ... (1)

gstoddart (321705) | about 4 months ago | (#47325583)

Tell me this again in 10-15 years.

Because the way we're going, I have little faith any of this will be true by then. Governments are increasingly deciding the law means whatever they decide it means.

Would I love to be wrong? Absolutely.

Welcome to new America (0)

Culture20 (968837) | about 4 months ago | (#47325257)

The will of the people is embraced.
The will of the people is extended.
The will of the people is extinguished.

Important Caveat (5, Informative)

Rary (566291) | about 4 months ago | (#47325265)

Haven't read the entire ruling, only scanned it, but there is an important caveat in it:

We now conclude that the answer to the reported question is, "Yes, where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators."

Seems like this guy has said "I did this, this, and this, and these files show that, but I don't want to let you see them", and the Court has ruled that he has to, because he's already admitted to those things, and therefore he would not be incriminating himself in doing so.

Of course, the reality may be that there's evidence of further illegal activities that he hasn't admitted to in the encrypted files. That might make the case for self-incrimination. I'd have to read the full ruling to see what, if anything, they said about that possibility.

Re:Important Caveat (1)

mrchaotica (681592) | about 4 months ago | (#47325497)

Of course, the reality may be that there's evidence of further illegal activities that he hasn't admitted to in the encrypted files. That might make the case for self-incrimination.

But in making such an argument, wouldn't he then be admitting them, thus invalidating the case for self-incrimination? Sure, it's a catch-22 (and therefore should not be true), but the judicial system doesn't seem to care about that anymore...

Re:Important Caveat (2)

Rary (566291) | about 4 months ago | (#47325523)

Just doing a little digging into the details of the 5th Amendment in practice, and found this interesting tidbit:

The Court acknowledged that it is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the Privilege against Self-Incrimination when questioned about the details.

That could very well apply in this case, so that even if there is additional evidence in the files beyond what he has admitted to, the moment he started admitting to some of it, he effectively waived his self-incrimination right.

criminal defense attorney and programmer here (5, Informative)

Anonymous Coward | about 4 months ago | (#47325273)

This is why you don't talk to the cops, especially if you find yourself in the fortunate situation of having illegally acquired 13 million dollars and encrypted all of the evidence. If you say nothing to the cops, you win. The only way you lose is if you brag to them about how awesome a job you did at getting away with the crime.

The people up here who are saying "tell them you lost the key" "tell them it was scrambled not encrypted, etc" are all idiots. Lying to the cops is a crime. Telling them nothing is the superior response.

Cop executing search warrant: "it's asking for a password"
Def: "I want a lawyer, I'm not talking to you"
Cop: "You encrypted it, didn't you?"
Def: "lawyer lawyer lawyer"
Cop: "We'll just get a warrant anyway and you'll go to jail. Help us help you."
Def: "did't you hear me? I want a lawyer"

That being said, I'm in FL so I'm covered by the 11th circuit ruling. Either way, silence is golden. I'd say that at least 30 percent of my cases would have turned out much better if clients hadn't consented to searches, admitted to elements of crimes or just generally blabbed when they should have remained silent.

Re:criminal defense attorney and programmer here (0)

Anonymous Coward | about 4 months ago | (#47325371)

I would imagine your cases would have also turned out better if your clients weren't guilty.

Re:criminal defense attorney and programmer here (0)

Anonymous Coward | about 4 months ago | (#47325603)

Perhaps surprisingly, criminal defense consists mostly of providing legal services to people who have committed crimes and gotten caught. That's pretty much how it works about 95% of the time.

Re:criminal defense attorney and programmer here (0)

Anonymous Coward | about 4 months ago | (#47325525)

/You/ are the idiot for not reading either the article or the responses: people suggesting he lie are assuming he's already made the mistake of bragging about his deeds, as is the case. In this instance, if he lies by saying that he has provided the correct password, the court has to a.) know that he's lying, and b.) prove that he's lying. Assuming, of course, that the rest of the court system is even remotely just, then the onus is on the prosecutors to prove that there is data in that scrambled data, /and/ prove that he's knowingly withholding the method by which it can be unscrambled.

Second key (2)

OnAutopilot (840291) | about 4 months ago | (#47325303)

Would it be possible to have a system where you have a second key that "decrypts" to an empty drive? I don't see how they could prove that you used your primary or fake key.

Re:Second key (1)

drjohn_97 (783685) | about 4 months ago | (#47325463)

The ruling mentions this, and says he's compelled NOT to enter a different password that shows other data than what is being requested.

Re:Second key (0)

Anonymous Coward | about 4 months ago | (#47325555)

> Would it be possible to have a system where you have a second key that "decrypts" to an empty drive?

That is how truecrypt works. [wikipedia.org]

Yes I am aware of the recent controversy around truecrypt. That would be off-topic.

Re:Second key (1)

TheCrazyMonkey (1003596) | about 4 months ago | (#47325567)

Truecrypt has/had something like that. It allows you to have a secondary, hidden partition in the "free" space of the disk image. Alas, it appears to be dying without a good replacement that I know of.

Re:Second key (1)

Anubis IV (1279820) | about 4 months ago | (#47325585)

In fact, there are multiple ways of handling schemes such as that. Different passwords may decrypt to partitions that are empty, only contain your benign data, only contain your incriminating data, or may erase everything. Decrypting a partition that is empty or erasing everything is a pretty obvious ploy, but if you actually keep your benign data on a partition separate from the incriminating data, it'd be a lot harder for them to prove anything.

...I can't recall (0)

Anonymous Coward | about 4 months ago | (#47325317)

works for the GOP leaders when they testify...or their cronies.

Next stop contempt (1)

Russ1642 (1087959) | about 4 months ago | (#47325321)

He'll have to call their bluff by not providing the password, and they'll probably hold him for contempt. Then there will be a public opinion campaign to have him released.

Yeah, no. Crossreference ... (0)

Anonymous Coward | about 4 months ago | (#47325343)

Boyd v. United States. This scenario is no different than in Boyd, except for the fact in Boyd the records were on paper and in this case they are electronic. Where can I donate to the defense fund?

"triggered"? (0)

Anonymous Coward | about 4 months ago | (#47325355)

the defendant's act of decryption does not trigger Fifth Amendment protection

There is NO constitutional NOR legal requirement for a right to be "triggered" in order for it to be applied.

What terrible weasel words;

But his admission of involvement sealed the deal against him -- he should've maintained the 5th throughout
the whole process.

This is what happens when you elect Republicans... (0)

Anonymous Coward | about 4 months ago | (#47325405)

They have not a shred of common sense. They aren't smart enough to comprehend rights so all they do is fuck over the public like this.

Digital vs Physical (4, Insightful)

Quantus347 (1220456) | about 4 months ago | (#47325409)

I get the legalese argument the guy as trying to make and the narrow line they tried to draw with the ruling, but Im not sure why it even got past the original judge.

If it had been the exact same situation, just a combination lock on on physical file cabinet in his office, once a proper court subpena was issued Law Enforcement might have asked for the combination as a courtesy but would have been perfectly within their rights to simply cut the thing open. And if they found evidence of some unrelated crime, that is long been fair game just like a drug bust during a traffic stop.

Maybe it's different by State, I dont know

Re:Digital vs Physical (2)

JeffOwl (2858633) | about 4 months ago | (#47325591)

The difference is that a locked file cabinet is trivial to circumvent without the cooperation of the key or combination holder. Once they had the warrant the police wouldn't bother with the courts, they would hire a locksmith or some other such expert to break open the cabinet or safe. Apparently the encryption on the hard drive in this case is much more difficult if not impossible for anyone at the state level to break it within a reasonable time period. So to avoid waiting 5 years and spending lots of $ on super computer time, they went to a judge to see if the threat of jail would shortcut the process.

Oblig: http://xkcd.com/538/ [xkcd.com]

Re:Digital vs Physical (2)

Arker (91948) | about 4 months ago | (#47325635)

"If it had been the exact same situation, just a combination lock on on physical file cabinet in his office, once a proper court subpena was issued Law Enforcement might have asked for the combination as a courtesy but would have been perfectly within their rights to simply cut the thing open."

The only difference appears to be that the LE agency involved purports to be incapable of 'cutting the lock.'

Well that and the unwise statements made to police by the defendant voluntarily. It would be interesting if a similar case could be constructed with an un-cuttable physical lock, but of course such things do not exist...

How is encryption different from a safe? (0)

bledri (1283728) | about 4 months ago | (#47325417)

This is slashdot, so I didn't read the article. I'm thrilled with this, but I wonder how encryption is any different than a safe. If the government has the legal authority (via a warrant) to open a safe, why wouldn't they have the same authority to decrypt your documents? I'm not arguing that I like the idea, but I don't see how encrypted documents would be a 5th amendment right if documents locked in a safe are not. Can you be compelled to open a safe?

Re:How is encryption different from a safe? (1)

gstoddart (321705) | about 4 months ago | (#47325489)

If the government has the legal authority (via a warrant) to open a safe, why wouldn't they have the same authority to decrypt your documents?

The difference is they can physically open the safe. They may lack the ability to decrypt your stuff.

This is the difference between what they can get on their own with a warrant, and what they would need to compel you to help them with.

And I have a hard time seeing how compelling you to provide them with information they don't have and can't get on their own isn't going against the intent of the 5th amendment.

Re:How is encryption different from a safe? (1)

Major Blud (789630) | about 4 months ago | (#47325503)

IANAL, but the government can open the safe themselves, but I'm not sure that they can "force" you to open your safe. Same thing with the encrypted drive; the government is free to spin their wheels trying to figure out their keys on their own, but they can't force the key from you directly.

Re:How is encryption different from a safe? (0)

Anonymous Coward | about 4 months ago | (#47325513)

I don't know how encryption may be legally different from a safe, but I know this:

The government can brute-force your safe in less than 2^100 seconds.

Re:How is encryption different from a safe? (1)

mbone (558574) | about 4 months ago | (#47325565)

You do not have to participate in the opening of your safe. A locksmith or torch can do that without you.

Your encrypted documents, on the other hand, may not be crackable without your help.

Note that courts seem to feel that Iris-scans, fingerprints, etc., are not "testimony," and so are not protected. That's something to keep in mind if you wanted to purely rely on biometric keys for your encryption.

IANAL, and this is not legal advice.

Re:How is encryption different from a safe? (0)

Anonymous Coward | about 4 months ago | (#47325631)

> Can you be compelled to open a safe?

Probably not, if it has a combination lock. [denverpost.com]
With a warrant they can always break open a physical safe. But that method does not compel the owner to do anything.

So whats the case law on keys (1)

silas_moeckel (234313) | about 4 months ago | (#47325423)

Has anybody else been compelled to give up a physical key or did they just get a warrant and use a locksmith? Seems this is the digital equivalent but the state is bitching that since the locksmith is to expensive and takes to much time so they need different rules.

Re:So whats the case law on keys (2)

Quantus347 (1220456) | about 4 months ago | (#47325527)

Not quite, but you are making a good point. According to The Ruling the only reason the motion was filed and this issue came at all up was because the guy happened to have used a particularly effective encryption software that the State was unable to circumvent. But they tried and would have been perfectly allowed to use any of the information found had they succeeded. Which is like saying that the 5th amendment would protect the contents of my safe, but only if I can afford a top-of-the-line one.

Re:So whats the case law on keys (2)

mbone (558574) | about 4 months ago | (#47325637)

A better analog might be, suppose someone said in testimony

I buried all my documents in a box out in the desert.

Could they then be compelled to provide the location if police searches turned up a blank? Seems like they could.

Of course, if you are willing to go to jail and wait it out, the "compulsion" is never forever, Seems like that might depend on just what's in those documents.

He walked into this one (4, Insightful)

MikeRT (947531) | about 4 months ago | (#47325425)

I think the correct response here would be to say that you can plead the 5th on the question of whether you can decrypt it or not, and if you claim the 5th compulsion is illegal. However, once you make an affirmative statement you waive the right to not be compelled. In terms of a key, it would be like if you had an almost impenetrable door that used a single key. The police ask you if you are in possession of said key while they have a valid warrant. You say yes, which means they have a right to compel you to hand over the key per the valid warrant. However if you shrug and plead the 5th it should not be on you at that point.

This is not entirely what it appears in summary (0)

Anonymous Coward | about 4 months ago | (#47325427)

Before everyone goes off the deep end, this is a bit of a special case. The reason the court can require him to decrypt the data in this instance is that he has already admitted the crime and that the encrypted data relates to the crime. Thus, nothing new (in terms of crimes committed) would be revealed by decrypting. If he had admitted to nothing and the court had only circumstantial evidence or suspicion of his crime, he could then successfully argue that decrypting the hard drive is self incrimination.

No need to lie (0)

Anonymous Coward | about 4 months ago | (#47325449)

If authorities ask for the decryption key, don't lie, simply plead the fifth when they ask. State that you are invoking your fifth amendment rights against self-incrimination -- that way you are shielded from future perjury charges for lying about knowing the key.

Seems like a nice legal loophole.

Plausible deniability (1)

PeeAitchPee (712652) | about 4 months ago | (#47325561)

This case illustrates why it's so important to have something like the recently-shut down TrueCrypt project out there. If prosecutors can't prove the existence of an encrypted volume, they can't keep you in jail for not giving up the keys for something which might not exist.
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