DOJ: We Can Force You To Decrypt That Laptop 887
betterunixthanunix writes "A mortgage-fraud case may have widespread implications for criminals who use cryptography to hide evidence. The US Department of Justice is pushing for the defendant to be forced to decrypt her hard drive, claiming that if they cannot force such decryptions, law enforcement will be unable to gather important evidence. The defendant's lawyer and the Electronic Frontier Foundation have made the claim that forcing such a decryption would be a violation of the defendant's fifth amendment right not to self-incriminate. The prosecutor in the case has insisted that the defendant would not be forced to disclose her passphrase, but only to enter the passphrase into a computer to decrypt the drive."
Taking a leaf out of the UK's book (Score:5, Interesting)
Sadly this is taking a leaf out of the UK's book. I say sadly, sad that we got there first on this sort of nonsense. It's a crime not to reveal passwords when required to do so. It's part of the Regulation of Investigatory Power Act 2000 (look it up!)
If I recall someone demonstrated the stupidity of it by sending an encrypted file to the then home secretary. He was then in possession of a file that he could not possibly decrypt, but it would be a criminal offence for him not to supply the passphrase to decrypt it if required to do so. In other words, a law that he could not possibly obey no matter how much he wanted to.
Despite this demonstration of the stupidity of the act, I believe it still stands.
Interpretation (Score:5, Interesting)
"The prosecutor in the case has insisted that the defendant would not be forced to disclose her passphrase, but only to enter the passphrase into a computer to decrypt the drive."
I can see that there is a difference between forcing the disclosure of the password and being able to read something that is already decrypted, however I can't see how that wouldn't still be self-incrimination. I assume the police would either bring her to the evidence room and tell her to enter the passphrase, or they would simply demand that she deliver an un-encrypted copy of the drive. Either way they are forcing her to give up evidence that may be used to incriminate. This seems to be a seriously frightening precedent to set.
They would never be able to take someone accused of murder and say, in effect: "look, we KNOW you did it, we just lack all the evidence needed to convict. You are now ordered to show us every place you visited on the day in question, including where the body is hidden."
-d
Re:Unfortunately.... (Score:5, Interesting)
The argument that the police will be unable to gather evidence if criminals use encryption is just as weak, considering the techniques they have developed for defeating such measures:
http://cryptome.org/isp-spy/crypto-spy.pdf [cryptome.org]
Re:Unfortunately.... (Score:5, Interesting)
Me too, but EFF's perspective is also useful, and forms a valuable distinction:
(Quote from EFF's amicus brief, emphasis mine)
So, while you can be compelled to surrender a physical object (the key to the safe, in the previous analogy), the 5th Amendment is specifically is about something in your mind.
If the "locked safe" in the previous analogy is not locked, but hidden, can a defendant be compelled to disclose its location?
As to the DoJ's "end run" based on the principle "don't tell us, just type it into the computer".... would the 5th Amendment not apply is a defendant is compelled to type self-incriminating testimony into a computer instead of speaking it to a law-enforcement officer?
The DoJ, IMHaUO*, hasn't got a leg to stand on.
*In My Humble and Uneducated Opinion... IANAL, after all.
Re:Unfortunately.... (Score:5, Interesting)
Simple solution, just make your pass-phrase "IKilledAGuyIn1998@Work!"
Not only does it meat the requiments of a strong password. Your pass-phrase WOULD be incriminating evidence, and they cannot get you to reveal it.
Re:Self-Destructing Key (Score:2, Interesting)
"No, that really is the password, the file(s) must have gotten corrupted. What did you do to my laptop?"
OK, so here is my simple question (Score:5, Interesting)
How do I prevent them from adding anything to the system after it is in their possession.
If I turn over my key to the encryption I want a method to ensure than anything they use against me was put there by me, not by them afterward.
Can that be done?
After all, if they are willing to force an issue you can be sure some will make sure something is wrong. Its not like the current Administration is concerned about the rights of its citizens, they are making Bush Jr look like a staunch civil liberties advocate
Re:not fair to ask you to rat on yourself (Score:5, Interesting)
Actually, NO, they are not allowed the privilege to "not agree".
If you invoke the Fifth in a criminal case, discussion STOPS. On the spot and there is NO further questioning allowed. Regardless of whether it's a State or Federal Court, per the Fourteenth Amendment and the Fifth.
If you invoke the Fourth and can PROVE that they violated that one, Case DIES on the spot. No further discussion, all evidence that stems from the improper warrant action must be discarded and is forever usable. Again, this is regardless of whether it's a State or Federal Court.
Now...what remains is whether this court deems the forcing you to decrypt things is a violation of the Fifth. Personally, I see it as being so. It's making you potentially incriminate yourself- which is PRECISELY what the Amendment was intended to prevent. It's irrelevant what form that self-incrimination takes. If they don't "see" it that way, you can bet your bottom dollar it'll be appealed right up to the Supreme Court because it's just that- a direct violation of the Fifth as much as forcing testimony out of you on the stand or in a police interrogation room.
Re:"I forgot" worked for alberto gonzales (Score:2, Interesting)
Yeah, because when faced with a pervert who likes to torture you just for his own pleasure, that will really make him "believe" you.
(And make no mistake, most people are like that. All they need, is an excuse to validate it. Like from an "authority". If you don't believe me, you haven't been in a POW camp.)
Gonzales would have spit out whatever you wanted him to say, had he been attached to electrical wires by his junk and a steel Christmas tree up his ass. Or whatever other horrible things they do nowadays.
Unless you destroy the key before his eyes, nothing will get you out of the questioning. Words will be worthless. Proof will be ignored.
No matter what, nothing will get you out of the pain.
Because if they know they can't get what they want, they will only hurt you more.
There is no way out. All you can do, is repress reality, wait until it's over, and hope you're still alive by then.
Or kill the bastards at the first chance you get. (Yeah, that includes you, DO(in)J!)
One thing is clear: The USA is NOT a democracy. And this is as much the department of justice, as Miniluv is the ministry of love.
Re:When Can They Force Decryption? (Score:4, Interesting)
There is the big difference. You didn't have to do or say anything. Same for say a blood sample or DNA sample. You don't have do (or say) anything to provide it. They do all work. But in forcing you to decrypt, they are forcing you to take action against yourself. That's self incrimination, and that's a violation of the fifth amendment.
Not that it will help much when most judges think they are above the law. Case in point. [tinyurl.com]