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Apparently the 5th Amendment means nothing...
#1
AshburnerX
AshburnerX
Defendent ordered to decrypt laptop so authorities can see it's contents.
What a fucking travesty... yes, upholding the 5th amendment means that it will be increasingly difficult for the authorities to convict criminals. That doesn't mean that our rights get to be trampled in the name of justice.
What a fucking travesty... yes, upholding the 5th amendment means that it will be increasingly difficult for the authorities to convict criminals. That doesn't mean that our rights get to be trampled in the name of justice.
#2
strawman
strawman
This is a good test case for the Supreme court, and I hope they push it all the way up there.
If police have reasonable suspicion that evidence of a crime is contained in a locked building which they cannot break into, can they force the defendant to produce the key?
I don't think that they can force defendants to give, for instance, a location for the crime scene, or any evidence - usually they have to provide a plea bargain to get that kind of information.
I don't see why an encryption key would be any different.
It's gotta be frustrating, though, because they have the building, they know there's evidence inside, but there's not a wrecking ball big enough that will get them inside it. Meanwhile the defendant is sitting there with the key.
But the defendant has always been sitting there with the "keys" to their case - all the bits and pieces of information that the prosecutors have to guess, tease, and find out without the defendants help.
We don't have torture, and we don't require the defense to aid the prosecution.
So, I hope they push it up to the supreme court so this can be tested once and for all.
If police have reasonable suspicion that evidence of a crime is contained in a locked building which they cannot break into, can they force the defendant to produce the key?
I don't think that they can force defendants to give, for instance, a location for the crime scene, or any evidence - usually they have to provide a plea bargain to get that kind of information.
I don't see why an encryption key would be any different.
It's gotta be frustrating, though, because they have the building, they know there's evidence inside, but there's not a wrecking ball big enough that will get them inside it. Meanwhile the defendant is sitting there with the key.
But the defendant has always been sitting there with the "keys" to their case - all the bits and pieces of information that the prosecutors have to guess, tease, and find out without the defendants help.
We don't have torture, and we don't require the defense to aid the prosecution.
So, I hope they push it up to the supreme court so this can be tested once and for all.
#3
AshburnerX
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 think this is the sticking point.
AshburnerX
It's ultimately going to depend upon how the key is stored. If it's a dongle that decrypts it automatically, then yes, that's a physical key that the defendant has to hand over to the authorities. In that case, it's no different that making someone open a safe or unlock a building.I don't see why an encryption key would be any different.
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 think this is the sticking point.
#4
@Li3n
Wasn't the 5th more about revealing actual incriminating evidence/facts, and not something that accesses it, like a safe combination?
I mean if they have a warrant for searching a vault and you refuse to give out the combination they could charge you with obstruction already, right...
While otherwise you're protected by the search and seizure laws...
And if she actually has incriminating evidence on the laptop she'd have to be an idiot to obey...
@Li3n
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 think this is the sticking point.
Wasn't the 5th more about revealing actual incriminating evidence/facts, and not something that accesses it, like a safe combination?
I mean if they have a warrant for searching a vault and you refuse to give out the combination they could charge you with obstruction already, right...
While otherwise you're protected by the search and seizure laws...
And if she actually has incriminating evidence on the laptop she'd have to be an idiot to obey...
#5
AshburnerX
AshburnerX
Whatever the case may be, this is definitely something I'd like to see reach the Supreme Court... assuming the defendant doesn't fold.
#6
strawman
Still, this is something that takes years, and often defines the rest of one's life. It's not an easy thing to do. Further, just this one thing might not prevent her from being incarcerated, even if the court strikes it down. If it doesn't change the outcome of her case, then it might not be worth pursuing that far.
strawman
It's a long, arduous process. But if she's going to be in prison during that time anyway, maybe she'll keep it up. It's an awesome opportunity, I suspect, for a law firm or lawyer to make their mark on the supreme court, so I doubt she'll have to pay for defense.Whatever the case may be, this is definitely something I'd like to see reach the Supreme Court... assuming the defendant doesn't fold.
Still, this is something that takes years, and often defines the rest of one's life. It's not an easy thing to do. Further, just this one thing might not prevent her from being incarcerated, even if the court strikes it down. If it doesn't change the outcome of her case, then it might not be worth pursuing that far.
#7
Hailey Knight
Hailey Knight
From the article:
Then what's the point of ordering the decryption?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.
#8
AshburnerX
AshburnerX
I never really made heads or tails of that line... I mean, what exactly is the judge's intent? Does said immunity only cover the act of possessing the decryption key, which would be damning evidence in it's own right? If she has immunity from any prosecution involving evidence from that laptop, then she'd have given it up already, unless she's afraid of being targeted by others for giving up the evidence. I really don't understand what is going on with that.
#9
evilmike
evilmike
It is a protection against self incrimination. Otherwise, the government could argue that she is responsible for the contents of the hard drive because she knows how to access the information. The problem is that if she is compelled to demonstrate this knowledge, she is effectively testifying against herself.I never really made heads or tails of that line... I mean, what exactly is the judge's intent? Does said immunity only cover the act of possessing the decryption key, which would be damning evidence in it's own right? If she has immunity from any prosecution involving evidence from that laptop, then she'd have given it up already, unless she's afraid of being targeted by others for giving up the evidence. I really don't understand what is going on with that.
#10
strawman
strawman
They can't use evidence gained directly from the hard drive during prosecution.
They can use evidence gained directly from the hard drive for the investigation.
It means they can't present stuff from the hard drive during the trial, but they can search the hard drive, find other people who communicated with her, and subpeona them for evidence, or get financial records and then subpeona banks for the evidence, etc.
It's an end-run around the 5th amendment. They are pretending that her participation in their prosecution won't be used against her directly, but it's OK if it will be used against her indirectly.
It's the same reason they don't always give you a miranda reading prior to questioning:
Unfortunately I don't know enough about this area of law to understand what else applies. If a criminal is caught in the act of destroying or hiding evidence, they can be charged with crimes related to that - but those crimes might be less punishing than the crimes they'd be convicted of if the evidence is found, so it might still be worth it.
If a building is locked, and is known to police to have relevant evidence, they can obtain a search warrant to open the building without the defendant providing the key - as long as they have the tools and techniques to do it.
The question is - can the defendant be forced to produce that key? The warrant gives them the right to the data contained in the hard drive, but without the key they don't have the proper tools and techniques to get into it.
If she doesn't provide it, can she be charged with something worse than obstruction of justice, or destruction of evidence? Are those charges worse than the charges she'd face if they had the data?
They can use evidence gained directly from the hard drive for the investigation.
It means they can't present stuff from the hard drive during the trial, but they can search the hard drive, find other people who communicated with her, and subpeona them for evidence, or get financial records and then subpeona banks for the evidence, etc.
It's an end-run around the 5th amendment. They are pretending that her participation in their prosecution won't be used against her directly, but it's OK if it will be used against her indirectly.
It's the same reason they don't always give you a miranda reading prior to questioning:
So the judge believes that compelling her to provide evidence that might lead to additional evidence is ok, so long as the evidence she provides is not used in trial directly.Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial.
Unfortunately I don't know enough about this area of law to understand what else applies. If a criminal is caught in the act of destroying or hiding evidence, they can be charged with crimes related to that - but those crimes might be less punishing than the crimes they'd be convicted of if the evidence is found, so it might still be worth it.
If a building is locked, and is known to police to have relevant evidence, they can obtain a search warrant to open the building without the defendant providing the key - as long as they have the tools and techniques to do it.
The question is - can the defendant be forced to produce that key? The warrant gives them the right to the data contained in the hard drive, but without the key they don't have the proper tools and techniques to get into it.
If she doesn't provide it, can she be charged with something worse than obstruction of justice, or destruction of evidence? Are those charges worse than the charges she'd face if they had the data?
#11
Hailey Knight
Hailey Knight
It sounds like the judge doesn't even know what he's talking about. I hope she and her lawyer fight it tooth and nail so that whatever the outcome, there's at least some sense and stability to the ruling.
#12
@Li3n
@Li3n
Doesn't that just means that they can't us the fact the she turned in the laptop unencrypted the 1st time? As in before the court made teh decision?From the article:
Then what's the point of ordering the decryption?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.
#13
Hailey Knight
The judge added that the government is precluded from using Ms. Fricosu's act of production of the open and unlocked files for everyone to see against her in any prosecution.
Hailey Knight
Unencrypted = no longer encrypted, as in, the files are there for everyone to see. So the quote essentially says:Doesn't that just means that they can't us the fact the she turned in the laptop unencrypted the 1st time? As in before the court made the decision?
The judge added that the government is precluded from using Ms. Fricosu's act of production of the open and unlocked files for everyone to see against her in any prosecution.
#14
GasBandit
GasBandit
Lesse, that's what, 4 amendments down? The 10th has long been meaningless, the first gets more infringed every day, the second is limited as hell, especially in certain parts of the country... Hell, I expect somebody to be forced to let soldiers live in their house any day now.
#15
Tress
Tress
I can't wait to hear someone say, "A warrant? What's that? Why would I need one of those?"
#16
ScytheRexx
ScytheRexx
Technically, they can already do this when it comes to things like cars, houses, or personal property. In the end it all depends on the morality of the police officer and whether he follows the rules, or instead creates an exigent circumstance.I can't wait to hear someone say, "A warrant? What's that? Why would I need one of those?"
#17
Tress
Tress
I'm well aware of that, I was just making a joke to go along with GB's statement.Technically, they can already do this when it comes to things like cars, houses, or personal property. In the end it all depends on the morality of the police officer and whether he follows the rules, or instead creates an exigent circumstance.
#18
ScytheRexx
ScytheRexx
I would laugh, but when you know the truth it's a bit hard.I'm well aware of that, I was just making a joke to go along with GB's statement.
#19
Norris
Norris
How is this all that different from ordering her to unlock a safe or file cabinet in her home? They seized the laptop with a warrant, it says right there in the article:
So, again, how would this be that different from asking her to unlock some ink-and-paper file storage container found in a property she owned/leased/was otherwise responsible for?The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud.
#20
Hailey Knight
Hailey Knight
The warrant lets them seize the laptop--they got it. Ordering her to give them proper access is an entirely different thing.
As was mentioned earlier, a key can be taken from someone, but in this case, it's in her memory.
As was mentioned earlier, a key can be taken from someone, but in this case, it's in her memory.
#21
strawman
strawman
Yeah, I dunno. A warrant allows officers to search your house, demanding access via key if necessary - it would be the same if it were in her memory and typed in via a security pad.
But again, if she doesn't provide the key, what can they charge her with that would be worse than the crime she is alleged to have committed?
But again, if she doesn't provide the key, what can they charge her with that would be worse than the crime she is alleged to have committed?
#22
Norris
Norris
What about an electronic keypad lock, where you need the numerical code? Or even just a regular combination lock? How about a person who has hidden the key to their file cabinet in a place where the police wouldn't think to look (such as, say, under the fridge or hidden in the rafters of their garage)? Would they be incriminating themselves if required to tell people where the key is or what their combination is? The argument here doesn't make any sense to me. It's no different from where I stand than saying "the warrant said you could search my garage, but if I give you the door code I'll be incriminating myself".The warrant lets them seize the laptop--they got it. Ordering her to give them proper access is an entirely different thing.
As was mentioned earlier, a key can be taken from someone, but in this case, it's in her memory.
#23
GasBandit
GasBandit
Haven't these feds heard of l0phtcrack?
#24
@li3n...
@li3n...
Oh right, total brain fart there...Unencrypted = no longer encrypted, as in, the files are there for everyone to see. So the quote essentially says:
The judge added that the government is precluded from using Ms. Fricosu's act of production of the open and unlocked files for everyone to see against her in any prosecution.
#25
strawman
strawman
http://it.slashdot.org/story/11/11/19/2011228/full-disk-encryption-hard-for-law-enforcement-to-crackHaven't these feds heard of l0phtcrack?
#26
GasBandit
GasBandit
Ah, I didn't click the first link, so I didn't catch that it was full disk encryption. I thought we were talking about encrypted files going off the windows password. My bad.
#27
strawman
strawman
Yeah, the only reason this has come up is because the defendant actually used good hardware based encryption.
#28
GasBandit
GasBandit
So here's a different take on it - if the feds raid your office, open your filing cabinet, and see reams upon reams of paper that look like:
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#29
strawman
strawman
I wonder if the mob accountants had to divulge their bookkeeping code without a plea bargain. I suspect they are generally cajoled into it with promises of protection and small sentences, though they are not the ultimate target of the investigation.
My understanding, though, is that in this case they actually have some evidence that demonstrates that there's relevant evidence on the computer - just the same way they have to have reasonable cause to execute a search warrant. They aren't fishing, so that file cabinet document wouldn't be the same unless they had reason to believe (and could convince a judge) that it contained relevant evidence.
The fact that it's encrypted isn't enough to get such a warrant.
My understanding, though, is that in this case they actually have some evidence that demonstrates that there's relevant evidence on the computer - just the same way they have to have reasonable cause to execute a search warrant. They aren't fishing, so that file cabinet document wouldn't be the same unless they had reason to believe (and could convince a judge) that it contained relevant evidence.
The fact that it's encrypted isn't enough to get such a warrant.
#30
GasBandit
I mean, if I type up all my documents in standard galactic, can I be held in contempt for not telling them what it is?
GasBandit
What I mean though, is even with the knowledge that there's something incriminating in the cyphered printouts, does that mean they can legally require you to decipher them?I wonder if the mob accountants had to divulge their bookkeeping code without a plea bargain. I suspect they are generally cajoled into it with promises of protection and small sentences, though they are not the ultimate target of the investigation.
My understanding, though, is that in this case they actually have some evidence that demonstrates that there's relevant evidence on the computer - just the same way they have to have reasonable cause to execute a search warrant. They aren't fishing, so that file cabinet document wouldn't be the same unless they had reason to believe (and could convince a judge) that it contained relevant evidence.
The fact that it's encrypted isn't enough to get such a warrant.
I mean, if I type up all my documents in standard galactic, can I be held in contempt for not telling them what it is?
#31
SpecialKO
That may be the rub here. If someone refuses to provide a key for a warrant, whatever other charges can be applied, the police can still knock the door down in the same day.
I think I'm in the "Let's get this before the SC" crowd. I'm antsy about the 5th amendment implications, but this is something that definitely needs to be tested at least once.
SpecialKO
They're probably more likely to be able to read standard galactic than break full disk encryption in time for the trial.What I mean though, is even with the knowledge that there's something incriminating in the cyphered printouts, does that mean they can legally require you to decipher them?
I mean, if I type up all my documents in standard galactic, can I be held in contempt for not telling them what it is?
That may be the rub here. If someone refuses to provide a key for a warrant, whatever other charges can be applied, the police can still knock the door down in the same day.
I think I'm in the "Let's get this before the SC" crowd. I'm antsy about the 5th amendment implications, but this is something that definitely needs to be tested at least once.
#32
GasBandit
GasBandit
But it illustrates responsibility on a smaller scale. Change standard galactic to "a language of my own invention," am I required by law to teach the cops GasBandian?They're probably more likely to be able to read standard galactic than break full disk encryption in time for the trial.
That may be the rub here. If someone refuses to provide a key for a warrant, whatever other charges can be applied, the police can still knock the door down in the same day.
I think I'm in the "Let's get this before the SC" crowd. I'm antsy about the 5th amendment implications, but this is something that definitely needs to be tested at least once.
#33
SpecialKO
SpecialKO
Absolutely, just tell them that to truly master GasBandian it will require full immersion for 24/7/365 for 30 years!But it illustrates responsibility on a smaller scale. Change standard galactic to "a language of my own invention," am I required by law to teach the cops GasBandian?
#34
evilmike
evilmike
I think it is likely that she could be held in contempt of court for as long as she does not provide the key.The question is - can the defendant be forced to produce that key? The warrant gives them the right to the data contained in the hard drive, but without the key they don't have the proper tools and techniques to get into it.
If she doesn't provide it, can she be charged with something worse than obstruction of justice, or destruction of evidence? Are those charges worse than the charges she'd face if they had the data?
#35
strawman
http://en.wikipedia.org/wiki/Contempt_of_court#United_States
So she could be jailed until she complies with the order, at which point the investigation would continue - unless she appeals the order and has it overturned by another court.
strawman
Ah, you are right:I think it is likely that she could be held in contempt of court for as long as she does not provide the key.
http://en.wikipedia.org/wiki/Contempt_of_court#United_States
So she could be jailed until she complies with the order, at which point the investigation would continue - unless she appeals the order and has it overturned by another court.
#36
PatrThom
None of this explains why the Judge is trying to subvert the Constitution, though.
--Patrick
PatrThom
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.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.
None of this explains why the Judge is trying to subvert the Constitution, though.
--Patrick
#37
AshburnerX
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.
So yeah... they would have to observe her putting the decryption key in, meaning she'd have to reveal it to the authorities.
#38
Necronic
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.
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.
#39
AshburnerX
AshburnerX
If they were smart enough to set all of that up, they'd be smart enough to get the password on their own.
#40
Necronic
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.
Like the difference between stepping on a cockroach and succesfully invading Russia in winter.
#41
Necronic
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.
#42
PatrThom
PatrThom
#43
strawman
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.
#44
Norris
Norris
Because destroying evidence to avoid criminal prosecution isn't a crime in and of itself?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.
#45
strawman
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/
strawman
Because destroying evidence to avoid criminal prosecution isn't a crime in and of itself?
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/
#46
Norris
Norris
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.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/