Apparently the 5th Amendment means nothing...

[PatrThom]

But what if the key is stored solely in the defendant's memory? You can't force someone to reveal knowledge that would incriminate themselves.

I'm sure the Judge's decision is based on the fact that the defendant does not have to reveal the key to the authorities to decrypt the hard drive. She merely has to type it in and decrypt it. The password itself never has to be revealed, she could type it in while nobody is watching. The prosecution is gambling that the computer holds information that will secure a conviction by secondary means.

None of this explains why the Judge is trying to subvert the Constitution, though.

--Patrick

 

[AshburnerX]

... except she kind of does need to reveal it. They can't just turn their backs while she does this, lest she simply reformat or destroy the laptop the moment their backs are turned. Yes, she'd be guilty of evidence tampering then and would do some time, but that may be preferable to whatever is on that hard drive getting out.

So yeah... they would have to observe her putting the decryption key in, meaning she'd have to reveal it to the authorities.

 

[Necronic]

Nah, that's easy. They could easily mirror the display to somewhere nearby to see what she is doing and have a kvm switch that will remove her keyboard control after she finishes putting in the password. No way they could know the actual password other than the length maybe, and if this is a bitlocker encryption the full length won't tell you anything anyways as you still only get a handful of guesses before the hard-drive trashes itself.

There's a fine line in this case between incriminating yourself and interfering with an investigation. I wonder where it is. I don't think access to the laptop is self incrimination though. I think that the current due process of the warrant system covers that entirely.

 

[AshburnerX]

If they were smart enough to set all of that up, they'd be smart enough to get the password on their own.

 

[Necronic]

Cracking a bitlocker password is slightly more difficult than attaching a monitor cable and a kvm switch to a laptop.

Like the difference between stepping on a cockroach and succesfully invading Russia in winter.

 

[Necronic]

The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.

​

So I'm pretty sure this is what people call "legalese" and it has limited bearing on the case. The act she is being required to do, production of the password, can not be used against her. JUST THAT ACT. Like they couldn't say "Hey she had the password to this information so therefore she is responsible for this stuff on it." That's the 5th ammendment issue. This actually *could* be an issue if the laptop had unkown multiple users, whereby the prosecutors could say "look Jane here had a password access to this information so it was her information".​

​

So they can't use the fact that she knows the password as evidence that the laptops contents belong to her. So really it doesn't matter much in the case beyond the fact that the judge is specifically pointing this specific item out as the issue that is protected by the 5th ammendment.​

​

IF she hadn't already told them that she had the password she MAY have been protected by the 5th ammendment, but it's revealing the knowledge that you know the password that is self-incriminating, not revealing the password.​

​

Also this is why people hate lawyers.​

 

[PatrThom]

Remember, kids. If you have something you want to keep hidden, you have to do it right.

--Patrick

 

[strawman]

A better encryption system would delete the data when you put in a special self-destruct password. Provide that to the police rather than the real password and you're all set, even if they subpoena you.

 

[Norris]

A better encryption system would delete the data when you put in a special self-destruct password. Provide that to the police rather than the real password and you're all set, even if they subpoena you.

Because destroying evidence to avoid criminal prosecution isn't a crime in and of itself?

 

[strawman]

Because destroying evidence to avoid criminal prosecution isn't a crime in and of itself?

If it's a lessor crime than the one you're being accused of, or the evidence would allow them to charge you with greater crimes...

Ha, looks like you might actually end up getting convicted in that case without a full trial:

http://www.ediscoverylaw.com/2008/0...uction-of-evidence-warrants-default-judgment/

 

[Norris]

If it's a lessor crime than the one you're being accused of, or the evidence would allow them to charge you with greater crimes...

Ha, looks like you might actually end up getting convicted in that case without a full trial:

http://www.ediscoverylaw.com/2008/0...uction-of-evidence-warrants-default-judgment/

That would be a civil case, where such brazen destruction of possible evidence can be taken into consideration to tip the scales against you. In a criminal case, you'd be popped for crimes relating to destroying evidence but it could not be used as evidence that the evidence was incriminating for the case at hand.