Defendant Ordered To Decrypt Laptop Claims She Had Forgotten Password 1009
wiedzmin writes "A Colorado woman that was ordered by a federal judge to decrypt her laptop hard-drive for police last month, appears to have forgotten her password. If she does not remember the password by month's end, as ordered, she could be held in contempt and jailed until she complies. It appears that bad memory is now a federal offense."
The article clarifies that her lawyer stated she may have forgotten the password; they haven't offered that as a defense in court yet.
Stupid law (Score:4, Insightful)
trivial workaround
It worked for gonzales (Score:5, Insightful)
If it works in a congressional hearing investigating potential ethics violations of the Attorney General, why not in a court of law?
5th Amendment? (Score:5, Insightful)
How can this woman be charged with contempt? Is there precedent in law to ignore the Fifth Amendment [wikipedia.org]?
No person 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.
Poor woman (Score:5, Insightful)
Re:5th Amendment? (Score:5, Insightful)
Yes. The fifth amendment was repealed by the Patriot Act, along with the first and the fourth. Haven't you been paying attention?
Re:5th Amendment? (Score:5, Insightful)
[sarcasm] The constitution is a living document. These things were never meant to be taken literally. [/sarcasm]
By default.. (Score:3, Insightful)
Re:How many Amendments are left ? (Score:5, Insightful)
You mean for the corporation people or the people people?
Comment removed (Score:4, Insightful)
Re:it is not unusual to forget passwords (Score:5, Insightful)
wish the myth of changing passwords regularly would die.
Re:Inside my HD there are two very important files (Score:2, Insightful)
The prison industry would be proud.
Re:5th Amendment doesn't apply (Score:5, Insightful)
This is little different than demanding that someone accused of a murder disclose the location of the body, or be held in contempt of court: you cannot win either way. Therefore, it is unconstitutional, not a "legitimate legal process." Even were it considered such by the legal system - which it is not - it would still be unconstitutional and a violation of civil rights in need of correction.
You might consider it reasonable, but I think the fact it is possible to easily forget something like a password makes it unreasonable even if there were any sound arguments for violating the 5th.
Comment removed (Score:5, Insightful)
Re:not a sterling example (Score:5, Insightful)
However, if it was encrypted, I would currently have a legal timebomb sitting on my desk. This is not right and is clearly unconstitutional. Dressing up the matter does not change that.
Re:Inside my HD there are two very important files (Score:5, Insightful)
In short, your defence when the judge is threatening to find you in contempt will be 'What can I say, your honor? I'm a retard.'
Re:Inside my HD there are two very important files (Score:5, Insightful)
I apologize if I'm being slow, but I'm stuck on how the note saying, "I derived my password from material I once got from these 10 sources" is the same as producing the passphrase demanded in a court order.
I mean, otherwise wouldn't the defendant in the article here say, "I know it was 120 characters selected at random from War and Peace", and call it a day? Because I'm getting the sense that an answer like that wouldn't cut it.
Tell them they lost they keyfile... (Score:5, Insightful)
The password is R4ndumbG1bb3r1s# - but I stored the keyfile on megaupload.
Re:What if... (Score:3, Insightful)
My attitude is that you're clearly nuts.
Re:Inside my HD there are two very important files (Score:5, Insightful)
Re:5th Amendment? (Score:5, Insightful)
You are required to turn over documents, and can be held in contempt for refusing. But, of course, the prosecution has to prove you actually have the documents. If you say you lost them, and they can't prove you didn't, they can't hold you in contempt. To my thinking, the same should apply to decryption passwords. I know I'd hate to have my freedom hang on my ability to remember a password.
Re:Use USB dongles! (Score:5, Insightful)
And when the filesystem history of your PC shows logs of you inserting that serial-numbered USB key into your PC last week, and using filesystem encryption tools to access it? And sure, you can combat that, but there's always another way to get caught out that you might not have considered. Hell, they can probably tell you the last time you touched the device itself, or inserted it, and into what computer you inserted it by various bog-standard forensic evidence (scratches on the USB connector, fingerprints, etc.).
You don't even know if they haven't been *watching* you insert that USB key by that point (and if they've raided you, there's a good chance they *have* been watching first). They won't tell you that until AFTER you've already denied ever knowing where it was. You've just stamped "guilty" on your own head by being a smartarse.
You can be a smartarse if you really want to, but nothing in the world is clever enough to stop "reasonable doubt" when you play games like that, especially if you're that confrontational. All that will do is make them WANT to put you away rather than plant doubt in their heads.
After a police raid, they'll just have all your possessions. Sure, it'll take a while to catalogue them all but they will. They actually have to. Not only that, they'll know the serial number of every one and maybe even the purchase origin. While you're sitting in an interview room being a smartarse, they're sending out court orders based on your PC and ISP evidence and forensically recording your Slashdot comments (and the above, in the wrong context, could be enough to convict you even in ten years time if that DOES happen!).
You missed the whole point of the article - the US, and the UK, have laws that if they even THINK you really have the key and haven't forgotten it, they'll throw you in a cell until you remember. Be as smart-arse as you like but people have already been convicted and jailed over it because of "reasonable doubt" that they weren't innocent. The law is there, it's written, it's enforceable (whether it's SENSIBLE is another matter and one that takes decades to argue in court) and if they suspect for a moment that you're being a smartarse, they'll use it.
This is how the law works. If you're stopped by a policeman in the UK, he'll pay you zero attention if you're polite, genuine, "I know, officer, I was speeding. It's a fair cop." about it. Start being pricky towards them for no reason and they'll have you for your tyre wear, the rear light, the slightly-covered number plate, look up your insurance, your license, run a check on your name, look through the car for anything you shouldn't have, etc.
It has to be said that it's not an unsuccessful method of law enforcement and anyone with brain enough to be respectful and polite and co-operative will "get away" with things that the idiots who's taking their badge number and threatening them won't. The same applies from the police up to the courts. Hire a good lawyer, be co-operative and polite, play by the rules and you'll get the best result. Be pricky about it and they'll do what they can to dig deeper and inconvenience you.
I can think of ways you could reasonably consider to have good reason to have lots of encrypted USB sticks about that you don't know the passwords too. But being the smartarse will end up with you in jail, whether you "did" anything or not. You can argue about it as much as you like but if the judge takes a dislike to your attitude or methods, they'll put you away at least until your successful appeal.
What do you do? You provide all the information you have and be as co-operative as possible. Why? The laws on that are worded so that co-operation is the better of the two options so that you're *forced* to co-operate or go to jail.
You can argue about self-incrimination, free-speech, etc. afterwards - when the judge KNOWS that you've been 100% co-operative. You can still have evidence stricken, ask for a mis-trial, appeal, etc. but you've been co-ope
Re:Inside my HD there are two very important files (Score:5, Insightful)
Your premise is ridiculous, as the court can reasonably assume that you intended to use said encrypted file, and thus pointing to random password generators for the password doesn't cut it because *you* need the password set to use it. Your solution doesn't accomplish anything other than looking stupid here and probably getting your arse handed to you by a judge.
If you are willing to take the legal ramifications for your "honeypot", then go for it, but don't expect a judge to accept your claim as true and leave you alone.
Re:5th Amendment? (Score:5, Insightful)
That depends how broad you think the 5th amendment is. To quote Justice Stevens:
A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe - by word or deed.
Note that this is from the dissenting opinion in Doe vs US, where the suspect was compelled to sign a form - that in itself contained no factual information - requesting information from foreign banks of any accounts he may be the holder of. The court found that they could, just like they could compel you to provide a handwriting sample.
As for a password, the best idea would be to STFU completely because:
The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication, because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. (...) Thus, the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts that imply assertions of fact.
So unless you acknowledge that you're in (sole or not sole) possession of the password, as this woman apparently did, that in itself will have testimonial value. Even if the prosecution has ample evidence for that anyway, you should be able to invoke the 5th. In this case she may have seriously screwed herself there. If there's no testimonial value, there's not much precedent to say one way or the other. Oh yeah, and don't try to destroy any evidence with booby traps. In the search I found that the SOX act was used in a suspected child porn case:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States (...)
Limited to the SOX act? Nope. Destroy evidence and you get up to 20 years in jail. Of course it helps that he stupid fuck admitted to destroying his HDD after the cops came by the first time, but just goes to prove laws will be cross-applied everywhere they can.
Re:Inside my HD there are two very important files (Score:4, Insightful)
The HD belongs to me. I paid for the HD with my own money. I have the right to store any file in my HD
Many have fallen foul of storing indecent images on their drives. Having the right to store any file is not quite correct.
Re:Inside my HD there are two very important files (Score:4, Insightful)
B. By providing a plain-text-file with a clear description of where I got the parts of the passwords from, I am, legally speaking, not withholding anything.
Producing information on how you derived the original password to encrypt the file is not the same as producing the password. The judge is asking you for the password, not for how you derived the password - by playing stupid games like that you are likely to end up in jail for contempt pretty quickly.
You are, quite simply, an idiot.
Re:Inside my HD there are two very important files (Score:5, Insightful)
2 .... But they can't prove either that you didn't forget it. Fuck it was a long password and the Masked grunts startled it out of my Head. Justice works based on PROOF not on beliefs. No proof No crime.
Not any more. You prove your innocence or you are a goddam dirty terrorist.
Re:Inside my HD there are two very important files (Score:5, Insightful)
The judge doesn't ask you information on how you constructed your passkey, he's asking for the passkey itself.
I don't think judges are particularly fond of riddles as answers.
Re:Inside my HD there are two very important files (Score:5, Insightful)
Their assumption may be worth shit, but "contempt of court" has no upper limit on how long you can be held for.
https://en.wikipedia.org/wiki/H._Beatty_Chadwick [wikipedia.org]
Feel like spending the next 1.5 decades in prison, just to wave your dick at the court? Your call man.
Re:How many Amendments are left ? (Score:5, Insightful)
In any conflict of such an magnitude, where the US military is outnumbered, things like logistics, troop movements and proper command structure will play a MUCH more important role than what guns the each side has. You can't really argue that a rag-tag militia can compete with a trained army in these aspects.
Now, guerilla warfare is a completelly different matter, of course.
Let alone (Score:5, Insightful)
the one fact you did not raise.
In any armed uprising in the United States your bound to have many of those military and police on the side of those resisting the government. Having been in the military and know friends still in it, there is America and there is the Government. You serve the later versus foreign enemies, your serve the former at all times.
Re:How many Amendments are left ? (Score:5, Insightful)
Nineteen hijackers and a couple of middle-aged rich kids with daddy issues managed to drag hundreds of thousands of highly-trained military personnel and a couple trillions dollars into a ten-year conflict that killed thousands of people, sent one country back to the stone age, destabilized another, and undermined the basic constitutional underpinnings of the most powerful country on Earth. And it still isn't even clear who "won." I don't think you can predict these sort of things based purely on the number of things or people on each side.
Re:Use USB dongles! (Score:5, Insightful)
You can argue about self-incrimination, free-speech, etc. afterwards - when the judge KNOWS that you've been 100% co-operative. You can still have evidence stricken, ask for a mis-trial, appeal, etc. but you've been co-operative and had nothing to hide so when they *DO* find a USB stick that you've never seen before and are demanded to decrypt it, you are much more likely to make them think "Damn, he gave us all the others, even when it incriminated him - maybe he really *doesn't* know this one?".
As long as you've been read your rights, pretty much anything short of a confession at gunpoint is forever. You'll never manage to "undo" anything you've said to the police or in court and everything that tumbled out because you gave them access to everything you know and have will be fully legally admissible. Your whole argument revolves around your belief that they'll actually think you innocent, and not just "well we couldn't convict him on what we wanted, but we can slam him with everything we got".
If they for some fucked up reason think you're involved in terrorism or kiddie porn or organized crime or whatever, do you think that suspicion will go away because you "give" them petty software piracy and having a joint? No, you just handed them enough rope to hang yourself with. That said, yes being a smart ass and trying for a game of wits with the police is a very bad idea, as is getting rude and obnoxious. Politely decline any search without a warrant and that you would not like to answer questions without a lawyer present. Most people just make a bigger mess of everything trying to "prove their innocence" as you seem to suggest.
Comment removed (Score:5, Insightful)
Re:How many Amendments are left ? (Score:5, Insightful)
They don't need to "win." The US military isn't going to simply destroy its own entire nation to "win." There only needs to be enough resistance to force the government to significantly change policies, and that would be relatively easy given the level of armament in private hands.
Re:5th Amendment? (Score:4, Insightful)
Re:Use USB dongles! (Score:5, Insightful)
What do you do? You provide all the information you have and be as co-operative as possible. Why? The laws on that are worded so that co-operation is the better of the two options so that you're *forced* to co-operate or go to jail.
I agree that you should be polite and co-operate with the letter of the law, but it's also important to reveal as little information as possible. Even innocuous information can be twisted against you. A prosecutor won't think "Well, this guy was so co-operative and revealed potentially incriminating information he didn't have to, so he's probably innocent." The prosecutor'll think "This information the suspect gave me might convince the jury to convict him." It's a prosecutor's job to prosecute if there's chance of a guilty verdict, and he/she won't mention to the jury you were such a nice guy and revealed something you didn't need to.
Re:Inside my HD there are two very important files (Score:4, Insightful)
Your response gives me a chilling effect.
If I want to fill a HDD with random data then I should be able to. It doesn't mean I am a criminal. Nor should it mean that a judge can lock me away for decades.
I have pondered this problem for some time.
Let's say you have a couple of HDD filled with random data, and several large files which are random data, and quite a few medium and small files which are.. random data.
Add to this that if these are truecrypt volumes, then they all have hidden volumes, but not all have files in them, and some will be literally random data.. not encrypted volumes at all.
What can they do? Force you to decrypt hard drives full of random data files which may or may not be valid encrypted volumes?
Force you to decrypt each and every single file which appears in some way to be an encrypted container - regardless if it is actually an encrypted container or not?
If this is the case, then you may as well encrypt and offsite store everything important or have a method for complete concealment so they can't see the files at all. Rubberhose file system or similar perhaps..
Meanwhile, anyone stupid enough to steal my files (thieves, police, or otherwise) can spend all the time they like trying to break into what appears to be encrypted files. If they are lucky, perhaps they will find a file which actually may possibly be an encrypted container and for which may actually have legitimate files in it. I wouldn't count on it though.
The $5 wrench can't work when the files have no key.
Yes, my head will hurt. Price you pay for sticking up for your rights.
If they want to break into my files then they can dedicate the processing time required to do so. Otherwise, the data is private; bugger off.
If they can't get in then it's not my problem. I am willing to 'rot in jail' to prove this point... even if the only outcome is that you can go on living your life without this hassle.
Re:That judge belongs behind bars. (Score:3, Insightful)
Re:Inside my HD there are two very important files (Score:3, Insightful)
Re:How many Amendments are left ? (Score:5, Insightful)
Isn't it just way simpler to divide the nation into 2 ideological factions and raise enmity between them to avoid a unified front against organized forces?
oh wait...
Re:Have you been living under a rock for the last (Score:3, Insightful)
And for every one killed, depending on what statistic you read, it can be anywhere form 20 to 300 dead Iraqi.
You are the only one I have ever met who seems to think that Iraq won the war, I think it is you who might have been under a rock for the last 10 years.
Re:How many Amendments are left ? (Score:2, Insightful)
The outcome of that scenario depends on how many of the common citizenry are willing to die.
40 million suicidal maniacs with guns trumps the 5 million trough-feeding welfare recipients that comprise our armed forces and constabulary.
Re:How many Amendments are left ? (Score:5, Insightful)
They don't need to "win." The US military isn't going to simply destroy its own entire nation to "win." There only needs to be enough resistance to force the government to significantly change policies, and that would be relatively easy given the level of armament in private hands.
Also understand that the US military is made up of volunteer civilians. Sure, some in the US military will be willing to fire on US citizens, but I seriously doubt that number will be more than half. While I don't expect a lot of grunts shooting their officers, I would expect an awful lot to not return from guard duty.
Re:Inside my HD there are two very important files (Score:4, Insightful)
'Legally speaking' the judge can hold you in civil contempt if they believe you know the password and refuse to disclose it.
Exactly. Judges have almost no oversight in their ability to use civil contempt. If he doesn't like you, he can throw you in jail for as long as he likes and you have no recourse.
This is a problem, whether we're talking about encryption or baggy pants in court. Jugdes have way too much power. Civil contempt is an end run around our constitutional protections and should be abolished.
Re:How many Amendments are left ? (Score:3, Insightful)
Yes, but will you kill my grandma?
Re:Let alone (Score:2, Insightful)
I doubt it.
remember kent state?
we fired on our own people.
WE FIRED ON OUR OWN PEOPLE.
military, like the police, knows no human compassion. they are "I ordered you to shoot!" mentality. don't question orders, just DO!
I would not trust my own countrymen to fight the good fight against the bad government. I would expect them to ENJOY KICKING FELLOW AMERICAN ASS. it does not matter to a military thug. they joined in order to GET to kick ass. they really don't care which. they are trained not to question.
look at the police. look at OWS. they all 'followed orders' and acted in a shameful mannger (the cops and authorities). no restraint was given. it was a field day for the pigs who love to knock heads.
again, its why they all joined. for the fun of busting people up.
no way they will listen to their own countrymen. the countrymen are inferior to them; they're "only" civilians. if their bosses tell them to fire, they'll fire.
Re:Let alone (Score:5, Insightful)
Having been in the military and know friends still in it, there is America and there is the Government. You serve the later versus foreign enemies, your serve the former at all times.
Most of the time, when the military is serving the government versus foreign enemies, they're not serving America at all.
Re:It worked for gonzales (Score:5, Insightful)
Then again, he could have pointed out (if he'd known) the flaming irony of The Speaker of the House harping about morals while acting like a complete degenerate himself.