Right Against Self-Incrimination and Hard Drive Data

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Right Against Self-Incrimination and Hard Drive Data

Postby de officiis » Fri Feb 24, 2012 8:50 am

In re: Grand Jury Subpoena/John Doe (http://www.ca11.uscourts.gov/opinions/ops/201112268.pdf)

Wall Street Journal article: http://blogs.wsj.com/law/2012/02/23/court-fifth-amendment-protects-suspects-from-decrypting-computers/?mod=WSJBlog

In a ruling that could have broad ramifications for law enforcement, a federal appeals court has ruled that a man under investigation for child pornography isn’t required to unlock his computer hard drives for the federal government, because that act would amount to the man offering testimony against himself.

The ruling Thursday appears to be the first by a federal appeals court to find that a person can’t be forced to turn over encyption codes or passwords in a criminal investigation, in light of the Fifth Amendment, which holds that no one “shall be compelled in any criminal case to be a witness against himself.”

The Atlanta-based U.S. Court of Appeals of the 11th Circuit ruled that “the Fifth Amendment protects [the man’s] refusal to decrypt and produce the contents of the media devices,” which the government believes contain child pornography.

The ruling could handcuff federal investigators, as more data are secured behind sophisticated encryption software. A Justice Department spokeswoman did not immediately respond to a request for comment.

Two lower federal courts in Colorado and Vermont have ruled that the government may compel suspects to decrypt storage devices or computers in federal criminal investigations, in certain circumstances. In the Colorado case, federal prosecutors argued that “public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these.”

The man, identified in court documents only as John Doe because he has not been charged, was served with a subpoena in April 2011 to appear before a federal grand jury in Florida and produce the unencrypted contents of his laptop hard drives and five external hard drives. Authorities had seized the devices from Doe’s hotel room in October 2010.

Doe refused, invoking his right against self-incrimination. The Justice Department responded by obtaining a court order that granted Doe limited immunity and required him to decrypt the hard drives. He again refused to comply. A federal judge held Doe in contempt of court and ordered him imprisoned. Doe appealed the contempt finding to the 11th Circuit.

According to court documents, Doe’s hard drives were encrypted with a program called “TrueCrypt.” As a result, the Justice Department couldn’t find any files and couldn’t even prove that any existed on hidden portions of the drives.

The Fifth Amendment privilege isn’t triggered when the government merely compels some physical act, like unlocking a safe-deposit box, the court said. But the amendment protects testimony in which a person is forced to use “the contents of his own mind” to state a fact.

“We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files,” wrote Judge Gerald Bard Tjoflat.

Judge Tjoflat, writing for the three-judge panel, said the government was also hobbled because it could only show that the storage space on the drives could hold files that number in the millions — but not that they actually do.

“It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating,” the judge wrote. “Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”

In a similar case, a federal court in Vermont in 2009 ordered a suspect to produce an unencrypted version of a drive on his laptop, but authorities had already seen evidence of child pornography on it.

In January, a federal judge in Colorado ordered a woman charged with bank fraud to decrypt her computer. The Denver-based U.S. Court of Appeals for the 10th Circuitdeclined to rule on the order before the case was tried.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby freewomban420 » Fri Feb 24, 2012 10:22 am

A small victory for freedom! Bravo!
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby Churper » Fri Feb 24, 2012 10:27 am

It's a good ruling. But what's exactly stopping the federal government from decrypting these drives themselves using hacking software? Surely some off the shelf encryption software is not impossible for the feds to crack.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby Glasperlenspieler » Fri Feb 24, 2012 10:44 am

Churper wrote:It's a good ruling. But what's exactly stopping the federal government from decrypting these drives themselves using hacking software? Surely some off the shelf encryption software is not impossible for the feds to crack.


Yes, good crypto is essentially mathematically unbreakable from a brute force perspective.

Where the rubber hits the road on this one is financial records and transactions.

There is simply no way the Feds will ever permit private financial record keeping and transactions.

However it will happen anyway because good crypto now anticipates the possibility of forced self incrimination and engineers in plausible deniability.

If Rockefeller were alive today Standard Oil's books would decrypt one way with one password and another way with another password.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby boethius » Fri Feb 24, 2012 10:48 am

Rubber hose cryptography and social engineering can crack any code--mathematical bafflegab be damned.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby Glasperlenspieler » Fri Feb 24, 2012 11:20 am

boethius wrote:Rubber hose cryptography and social engineering can crack any code--mathematical bafflegab be damned.


Indeed.

A good bit from the book Cryptnomicon:

The longer the key you are trying to generate, the longer this takes. Randy is trying to generate one that is ridiculously long. He has pointed out to Avi, in an encrypted e-mail message, that if every particle of matter in the universe could be used to construct one single cosmic supercomputer, and this computer was put to work trying to break a 4096-bit encryption key, it would take longer than the lifespan of the universe.

``Using today's technology,'' Avi shot back, ``that is true. But what about quantum computers? And what if new mathematical techniques are developed that can simplify the factoring of large prime numbers?''

``How long do you want these messages to remain secret?'' Randy asked, in his last message before leaving San Francisco. ``Five years? Ten years? Twenty-five years?''

After he got to the hotel this afternoon, Randy decrypted and read Avi's answer. It is still hanging in front of his eyes, like the afterimage of a strobe:

I want them to remain secret for as long as men are capable of evil.



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Re: Right Against Self-Incrimination and Hard Drive Data

Postby wither » Fri Feb 24, 2012 11:21 am

http://newscenter.berkeley.edu/2011/09/22/brain-movies/

Should it be allowable in the future to force a person to undergo a scan that would reveal what was in their own mind? Disclose motives or other information? No matter how unintrusive the process is?

Good steganograpic encryption, people. It's there.It's free. Everyone should be able to use it if they really seem to feel they have the need.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby Glasperlenspieler » Fri Feb 24, 2012 11:23 am

The computer finally beeps. Randy rests his tired hand. Ordo politely warns him that it may be busy for a while, and then goes to work. It is searching the cosmos of pure numbers, looking for two big primes that can be multiplied by each other to produce a number 4096 bits long.

If you want your secrets to remain secret past the end of your life expectancy, then, in order to choose a key length, you have to be a futurist. You have to anticipate how much faster computers will get during this time. You must also be a student of politics. Because if the entire world were to become a police state obsessed with recovering old secrets, then vast resources might be thrown at the problem of factoring large prime numbers.

So the length of the key that you use is, in and of itself, a code of sorts. A knowledgeable government eavesdropper, noting Randy's and Avi's use of a 4096-bit key, will conclude one of the following:

--Avi doesn't know what he's talking about. This can be ruled out with a bit of research into his past accomplishments. Or,

--Avi is clinically paranoid. This can also be ruled out with some research. Or,

--Avi is extremely optimistic about the future development of computer technology, or pessimistic about the political climate, or both. Or,

--Avi has a planning horizon that extends over a period of at least a century.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby wither » Fri Feb 24, 2012 12:03 pm

Glasperlenspieler wrote:If you want your secrets to remain secret past the end of your life expectancy, then, in order to choose a key length, you have to be a futurist.


That is only true if

a) the solution might be comprehensible to a skilled person in the future (think 'arbitrary language'), and

b) don't have a random key length shorter than the information you wish to keep secret.

Schneier's book outlines these items.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby AgentX » Fri Feb 24, 2012 9:30 pm

You know why cryptography is evil, because it make everyone equal.

The good and the bad can keep secrets.
The rich and powerful and the poor and powerless can keep secrets.
The State and the Citizen can keep secrets

I believe the nature of Man is abhor equality, there will be cryptography but it will not be allowed to be practiced by all. The forces that benefit from the current inequalities will see to that and I believe you will see laws making cryptography illegal unless a key is registered.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby MaDuce » Wed Feb 29, 2012 2:44 am

TruCrypt strikes again!

Just wait until possessing such software is illegal. Make possessing such encryption a 20 year sentence, then coerce suspects to decrypt their data by offering a lesser sentence in return.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby samsmart » Wed Feb 29, 2012 4:32 am

MaDuce wrote:TruCrypt strikes again!

Just wait until possessing such software is illegal. Make possessing such encryption a 20 year sentence, then coerce suspects to decrypt their data by offering a lesser sentence in return.


That will never happen because business entities will pay legislators tons of money to ensure that it doesn't.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby MaDuce » Wed Feb 29, 2012 10:59 am

samsmart wrote:
MaDuce wrote:TruCrypt strikes again!

Just wait until possessing such software is illegal. Make possessing such encryption a 20 year sentence, then coerce suspects to decrypt their data by offering a lesser sentence in return.


That will never happen because business entities will pay legislators tons of money to ensure that it doesn't.


Oh, I'm sure such laws wouldn't apply to big corporations.
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Re: Right Against Self-Incrimination and Hard Drive Data

Postby MaDuce » Tue May 28, 2013 11:07 am

The judge in this case reversed the decision apparently after new evidence:

According to the order (PDF), after devoting “substantial resources” in the case, FBI agents apparently have been able to decrypt one of the drives. The government argued that because it had found “numerous files which constitute child pornography,” “detailed personal financial records and documents belonging to Feldman,” and “dozens of personal photographs of Feldman," Feldman therefore has “access to and control over” the set of drives.
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