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DOJ: We Can Force You To Decrypt That Laptop 887

Posted by samzenpus
from the show-us-everything dept.
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."
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DOJ: We Can Force You To Decrypt That Laptop

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  • Do they have to show cause first or is this a new tool in the arsenal of the TSA?
    • by CohibaVancouver (864662) on Monday July 11, 2011 @12:29PM (#36721870)

      Do they have to show cause first or is this a new tool in the arsenal of the TSA?

      You guys need to get your government departments straight. This is NOT the TSA. The TSA are the ones at Fargo International Airport who x-ray your flip-flops and make sure you're not taking nail clippers onto an airplane. They're not tasked with searching your laptop - They're only tasked with X-raying your laptop and your kid's teddy to make sure there isn't a bomb inside. If they suspect criminal activity they have to call the police.

      The US CBP (Customs and Border Protection) *do* have the right to search the contents (i.e. files) of your laptop when you are entering the USA. They can search your laptop, search your luggage and search your person. In the same way they can require you to open a locked box that you might be travelling with, they are require you to open your 'locked' laptop. The courts have backed them up - See: http://news.cnet.com/8301-13578_3-10172866-38.html [cnet.com]

      So don't get TSA and CBP mixed up - They're different.

      [Insert dozens of obligatory Slashdot posts here about TrueCrypt "Plausible Deniability" here.]

      Finally, note that this article has nothing to do with airport or border security - It's about a court case.

      • by Jane Q. Public (1010737) on Monday July 11, 2011 @02:31PM (#36724188)

        "The courts have backed them up ..."

        Wrong, in the general sense. The courts can force you to reveal your passwords, only in cases where they can already show that the encrypted data contains something illegal. They do NOT have the right to force you to reveal your password or decrypt your data just so they can find "evidence".

        The article you point to in that link failed to emphasize that the customs agents had already seen child pornography that was contained in his encrypted data. Therefore, they already knew that there was illegal material in it.

        The courts have NOT supported forcing someone to reveal encrypted data under any other circumstances.

        • To clarify this point: if somebody (say a couple of undercover detectives, for example) SAW you put known contraband in your safe, then a court can force you to open that safe. If, on the other hand, they don't know of anything illegal in that safe, but only THINK there may be EVIDENCE of something illegal contained in your safe, the 4th Amendment prevents them from undertaking such a "fishing expedition", merely to try to find evidence.

          The court case under discussion appears to be a case of a fishing ex
  • You just have to sign this confession we very thoughtfully prepared for you.

    Yeah, I know, it's not entirely the same; it's not even really analogous. It's just an example of other back-door out-of-the-box problem-solving thinking, the kind of thing that made America great.

  • I don't recall... (Score:3, Insightful)

    by Anonymous Coward on Monday July 11, 2011 @11:52AM (#36721234)

    "I'm sorry, but I don't recall my passphrase. I guess the stress of this case has made me forget it!"

    If it works for the DoJ it should work for us...

    • by JonahsDad (1332091) on Monday July 11, 2011 @12:23PM (#36721766)

      "I'm sorry, but I don't recall my passphrase. I guess the stress of this case has made me forget it!"

      Wow! That actually is my passphrase.

  • by TheGratefulNet (143330) on Monday July 11, 2011 @11:52AM (#36721236)

    hey, if you did something wrong and would be going to jail, why the hell help them even more? either way you go to jail, right?

    they won't KILL you if you don't unlock your encr. stream. they will lock you up either way.

    so don't give it to them. you cannot be forced to hang yourself.

    fuck the DOJ.

    • by Skapare (16644) on Monday July 11, 2011 @12:06PM (#36721462) Homepage
      That's what the 5th Amendment is about ... you don't have to do their work for them.
    • by Nerdfest (867930) on Monday July 11, 2011 @12:15PM (#36721590)
      You shouldn't need to be forced to clear yourself either.
    • by nedlohs (1335013)

      contempt gets you the joys of an indefinite stay at jail. Until you comply or they finally accept that you aren't going to.

  • Unfortunately.... (Score:5, Insightful)

    by LordLimecat (1103839) on Monday July 11, 2011 @11:54AM (#36721262)

    From TFA:

    Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

    That sounds like a rather spot on analogy. Sounds like precedent is against her. The argument that the passphrase, itself, is the incriminating self-testimony seems really weak, both because the passphrase is not being required, and because the passphrase is not, in the end, what will incriminate her.

    IANAL, of course.

    • Re:Unfortunately.... (Score:5, Interesting)

      by betterunixthanunix (980855) on Monday July 11, 2011 @12:03PM (#36721416)
      On the other hand, decrypting data amounts to interpreting evidence for the prosecutor. Suppose the defendant had been using secret code words, known only to her and her co-conspirators; should the prosecutor have the right to compel her to explain those code-words? What makes AES any different, other than the fact that it is a well-designed and difficult to crack cipher?

      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]
      • by sconeu (64226)

        Let's say I've written my incriminating evidence in Klingon. The prosecutor doesn't have access to anyone who can read Klingon. Does he have the right to force me to translate said evidence for him?

        Similarly, encryption translates English text (this is the US we're talking about) into "mumbo jumbo". How does forcing me to translate the "mumbo jumbo" into English differ from the Klingon scenario above?

    • Re:Unfortunately.... (Score:5, Interesting)

      by idontgno (624372) on Monday July 11, 2011 @12:07PM (#36721472) Journal

      Me too, but EFF's perspective is also useful, and forms a valuable distinction:

      The Fifth Amendment generally protects a person from being compelled to give testimony that would incriminate her. United States v. Hubbell, 530 U.S. 27, 34 (2000) (Hubbell I); Fisher v. United States, 425 U.S. 391, 408 (1976). The privilege is limited to testimonial evidence, or a communication that "itself, explicitly or implicitly, relate[s] a factual assertion or disclose[s] information." Doe v. United States, 487 U.S. 201, 210 (1988) (Doe I). Put a different way, the privilege protects the "expression of the contents of an individual's mind."

      (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.

      • by brit74 (831798)
        > "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."
        So, what you're saying is that the DOJ can compel someone to hand-over the key to a safe, but if that same exact safe had a combination lock, then the DOJ would be powerless because they can't ask you for the numerical combination that would open it? Seems like a bizarre distinction.

        > "If the "locked safe" in the previ
        • If it's a combination lock the DoJ is free to hire a lock smith to open it up. They are trying to do an end run because opening it up is an expensive and long process. They have the data they are free to attack the crypto. Fact is it could be decades before they do that successfully.

          We have swung way to far into the governments need for info.. The end runs around spousal protects for the mob cases were the start of the land slide (your supposed to be able to confide in your spouse similar to doctor/lawye

    • Re:Unfortunately.... (Score:5, Interesting)

      by ClubPetey (324486) <clubpetey AT yahoo DOT com> on Monday July 11, 2011 @12:12PM (#36721554)

      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.

    • by _0xd0ad (1974778)

      Being required to enter the passphrase into a computer that the DoJ controls is exactly the same as being required to give your passphrase to the DoJ. There's no difference. Hell, what it boils down to is: Don't give me your passphrase; just enter it into this computer which I control. How many Slashdotters would balk at that? Hopefully most of them.

      There are any number of ways that the DoJ could get your passphrase if they wanted it, and were permitted to demand that you enter it onto their computer - a ke

    • by dougmc (70836)

      That sounds like a rather spot on analogy. Sounds like precedent is against her.

      Did you read the next paragraph? They gave a number of precedents that were for her.

      The point is that this could go either way, and the story did try to give both sides.

      The argument that the passphrase, itself, is the incriminating self-testimony seems really weak, both because the passphrase is not being required, and because the passphrase is not, in the end, what will incriminate her.

      IANAL, of course.

      Traditionally, defendants have not been required to assist in any manner in building the legal case against them. Giving up the password assists.

      Your home can be search (with a warrant) without your assistance. Your brain cannot -- at least not yet. (And be very afraid of what the courts might rule if we ever do have the technology to re

  • by tdc_vga (787793) on Monday July 11, 2011 @11:54AM (#36721272)

    Here's a presentation discussing the issue of force password disclosures and laptops I gave at DefCon 17: http://www.youtube.com/watch?v=ibQGWXfWc7c [youtube.com]

    Check the law and make up your own mind.

  • by FoolishOwl (1698506) on Monday July 11, 2011 @11:55AM (#36721278) Journal

    I am no lawyer, but the argument that this is a fifth amendment issue seems strong to me.

    How is allowing the defendant to keep the password private a meaningful concession? The password has no value if the hard drive has been decrypted.

    • by Matheus (586080)

      ...mostly because of the worst abuse of passwords: She probably uses that password elsewhere and having the information in the public domain could potentially lead to more of her life being exposed than what's required for the case.

      This is just another good reason for not reusing passwords.

  • by zooblethorpe (686757) on Monday July 11, 2011 @11:55AM (#36721288)

    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."

    That would still seem to violate the 5th amendment. The relevant text is bolded below:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Anyone of more legal background care to comment?

    Cheers,

    • She's not being compelled to be a witness against herself... The hard drive is a piece of evidence that is in effect a "witness" against her.

      It's like you're hiding a dead body in the trunk of your car... and you've modified it with a special lock that cannot be forced. This is the equivalent of them getting a warrant on searching your car, and you being forced to come up with a key.

      • by chipwich (131556) on Monday July 11, 2011 @12:30PM (#36721878)
        No. Your analogy is part of the problem. The DOJ and Feds have subverted the concept of innocent until proven guilty into If you're not doing anything wrong, then you shouldn't have anything to hide.

        By setting up your analogy with the statement that there is a dead body in the trunk, you've already presumed guilt, nothing any civilized society should be doing.

        What kind of a crime can be committed where the only access to incriminating evidence lies in the mind of the accused? We're entering a dangerous era of thought-crime. Why doesn't the DOJ just apply some random permutation on the data so that it generates some unrelated and arbitrary but incriminating documents?


        TL;DR - Law enforcement should either do better detective work to find evidence without relying on the accused to provide it, or save taxpayer money, cut the whole "democracy" shenanigans, and just use false or forced confessions.
      • by whoever57 (658626)

        It's like you're hiding a dead body in the trunk of your car... and you've modified it with a special lock that cannot be forced. This is the equivalent of them getting a warrant on searching your car, and you being forced to come up with a key.

        Actually, it's not quite. RTFA, because they are not insisting that she provides the key to unlock the car/hard drive, instead, they are providing the option that she can type in her password, (keeping the passphrase secret) to unlock the drive and then allow acces

      • You have already concluded there is a "body" - and therein lies the problem.

        Much of the discussion has assumed the guilt of the accused. The correct principle is presumption of innocence. The accused should not be compelled to provide assistance, especially to parties who are already looking to convict.

        It's not like the Prosecution wants to find proof of innocence. It's better for them to secure the conviction

      • by smartr (1035324)
        There is no such thing as a physical lock that cannot be forced. Warrants don't force you to give a key up, they give cops permission to do whatever is necessary to search. I don't see how a warrant requires anyone to help the police do their work. Anyhow, what if you don't have a key to your unbreakable lock? Should you be compelled to reveal who does? I plea the 5th... I plea the 5th... I don't know it. I don't have it. The criminal I paid has it.
      • by jittles (1613415)
        Except that there is no such thing as a special lock for a trunk that cannot be forced, or bypassed. And besides that, if you can decrypt the drive then you have shown, beyond a reasonable doubt, that it is your drive. You have in effect incriminated yourself, if there is incriminating data on the drive. So even if they do not get the password, they can show a video of you decrypting the drive to the jury and say "See! Only the person who put the data on here would know the encryption key!"
  • Torture anyone? (Score:3, Insightful)

    by aaaaaaargh! (1150173) on Monday July 11, 2011 @11:57AM (#36721310)

    Why do US authorities not just torture people to get the information they need? Wouldn't that be more effective and convenient?

    Oh wait...they already did in Abu Ghraib and Guantanamo...

  • by grahamm (8844) <gmurray@webwayone.co.uk> on Monday July 11, 2011 @11:57AM (#36721314) Homepage

    If you have a safe with a combination lock, can the authorities legally require you to either tell them the combination or unlock the safe? The passphrase to allow access to an encrypted drive is equivalent to the combination of a safe, so the same rules should apply.

  • by Geeky (90998) on Monday July 11, 2011 @11:58AM (#36721326)

    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.

  • In the UK... (Score:4, Informative)

    by BandoMcHando (85123) on Monday July 11, 2011 @11:58AM (#36721328)

    ... they already can.

    (Legally compel you to reveal crypto keys or render the relevant information intelligible that is. Well, you could refuse, but that's an offence obviously. Section 49 of Part III of the Regulation of Investigatory Powers (RIPA)).

    http://www.legislation.gov.uk/ukpga/2000/23/section/49 [legislation.gov.uk]

  • Interpretation (Score:5, Interesting)

    by MetalliQaZ (539913) on Monday July 11, 2011 @11:58AM (#36721330)

    "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

  • Papers and effects (Score:5, Insightful)

    by Compaqt (1758360) on Monday July 11, 2011 @11:59AM (#36721340) Homepage

    Whoever said that you have to arrange your papers and effects in such a way that the government can understand it?

    Does this also apply to paper documents?

    Are you not allowed to write your thoughts in a coded manner?

    Is it also OK to use euphemisms in your diary?

    Is it the government's position that you also have to interpret your diary for the prosecution?

  • by Dan667 (564390) on Monday July 11, 2011 @12:00PM (#36721362)
    sounds like the best course of action is to say you forgot your passphrase. Problem solved.
  • by slshwtw (1903272) on Monday July 11, 2011 @12:05PM (#36721434)
    Here's the DOJ's FAQ [justice.gov] on their encryption policy: Basically they are asking developers to create encryption software that has a government backdoor, and for corporations and individuals to use it voluntarily. They seem to think that:

    Many criminals will use encryption that permits access by law enforcement, if that is the type of encryption that is commonly used and included in over-the-counter software

    Because criminals buy their encryption software at Best Buy...

  • by brunes69 (86786) <slashdot@keirstea d . o rg> on Monday July 11, 2011 @12:07PM (#36721480) Homepage

    This is why anyone serious about security uses TrueCrypt or other encryption systems which have plausible deniability built in. If she was using TrueCrypt, she could give them the password they are looking for, without revealing ANYTHING about what is actually on the drive.

  • by Smallpond (221300) on Monday July 11, 2011 @12:31PM (#36721916) Homepage Journal

    So once the technology is available to directly read someone's thoughts, I assume they will allow the same argument. You can't be forced to say what you're thinking, but you can't stop them from looking inside your head because the evidence is there.

  • by mlwmohawk (801821) on Monday July 11, 2011 @12:34PM (#36721962)

    "I don't recall" work great for Ronald Reagan. I'm sure there is precedent that it is acceptable under oath.

    Second, and this is a technical solution, we need a forked compression system, where two different passwords give you two different sets of contents. Where encrypted data looks like empty space on the faux system. When the faux system is engaged, the encrypted data is destroyed. Hopefully one uses backup.

  • Contempt of Court (Score:5, Insightful)

    by bsDaemon (87307) on Monday July 11, 2011 @12:52PM (#36722304)

    I hope the defendant doesn't give in. Personally, I'd rather sit in jail on contempt of court charges than go to big boy prison for whatever the state were investigating me for. At least with the contempt of court charges, I run the chance of becoming a cause celeb for standing up for principles, which is way better than being convicted of a crime.

    I got into an argument about this very case with my (non-American) girlfriend the other day. She honestly doesn't get the fifth amendment and assumes that anyone who invokes it is basically admitting guilt, which isn't the case. She's from central America. You would think that people down in that part of the world would have some recent memory of unjust laws. Just because something is the law, doesn't make it right, and it is better for all of us that we keep the fifth amendment intact for cases when the law is not just than to violate it just so that someone can get convicted of fraud, murder or anything else.

    • You seem to think the purpose of the fifth amendment is to allow the guilty to evade justice. Not so buddy. Fifth amendment is also closely related to obstruction of justice. You can not destroy evidence. You can not refuse to hand over evidence. Only thing you can do is to refuse to help the investigators decode and link the evidence. Also you get the right to any exculpatory evidence (evidence of you innocence) in the hands of the prosecution. Seen in totality, requiring the decryption of a hard disk is
  • Now that compelled testimony (prohibited by 5th amendment) and compelled speech which may be used to obtain evidence, have suddenly become two different things, Miranda warnings will have to be reworded.

    "You have the right to remain silent," will have to change to "You have the right to withhold information which may be used against you, but do not have the right to withhold information which leads to other information which may be used against you." And that's just a first draft off the top of my head but probably still doesn't work quite right.

    It's going to take a lot of lawyers working a lot of years to rewrite Miranda, I think. And somehow I doubt it'll be comprehensible when they're done.

    Law is too complex for humans.

  • by blair1q (305137) on Monday July 11, 2011 @01:23PM (#36722930) Journal

    What password?

    I bumped my head when you put me in the police car. Can't remember a thing. Other than my 5th Amendment right to give you nothing you can't find on your own.

  • by Dyinobal (1427207) on Monday July 11, 2011 @01:32PM (#36723146)
    My take on it is simply this, the knowledge they need is in the defendants head, giving or otherwise providing that knowledge self incriminated and thus goes against the 5th amendment. The police can ask you where the bodies are buried but they can't make you tell them. Something in someones head is always protected under 5th amendment laws as far as I'm concerned.
  • by swamp boy (151038) on Monday July 11, 2011 @01:59PM (#36723644)

    Dear DOJ,

    Each step you take like this causes us to take one step closer to a revolution.

    Sincerely,
    Cranky citizens

  • by DarthVain (724186) on Monday July 11, 2011 @02:59PM (#36724706)

    Wasn't there a case in NY where a guy was getting a divorce and refused to give over his account numbers where he stashed all his loot as he didn't want his wife to have any of it.

    The judge basically said he was in contempt of court and could stay in jail until he felt like sharing that information.

    He stayed in jail in protest in contempt of court for like 12 years before I think they finally released him (or is he still in jail, I have no idea).

    This seems like a very similar issue.

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