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General => Archive => Political and Religious => Topic started by: El Barto on January 25, 2012, 06:10:04 PM
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https://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/
A judge on Monday ordered a Colorado woman to decrypt her laptop computer so prosecutors can use the files against her in a criminal case.
The defendant, accused of bank fraud, had unsuccessfully argued that being forced to do so violates the Fifth Amendment’s protection against compelled self-incrimination.
“I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Colorado U.S. District Judge Robert Blackburn ruled Monday. (.pdf)
The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud.
The case is being closely watched (.pdf) by civil rights groups, as the issue has never been squarely weighed in on by the Supreme Court.
Full disk encryption is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power.
The government had argued that there was no Fifth Amendment breach, and that it might “require significant resources and may harm the subject computer” if the authorities tried to crack the encryption.
Assistant U.S. Attorney Patricia Davies said in a court filing (.pdf) that if Judge Blackburn did not rule against the woman, that would amount to “a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”
A factually similar dispute involving child pornography ended with a Vermont federal judge ordering the defendant to decrypt the hard drive of his laptop. While that case never reached the Supreme Court, it differed from the Fricosu matter because U.S. border agents already knew there was child porn on the computer because they saw it while the computer was running during a 2006 routine stop along the Canadian border.
The judge in the Colorado case said there was plenty of evidence — a jailhouse recording of the defendant — that the laptop might contain information the authorities were seeking.
The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. 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.”
Fucking fascinating---I love it.
My biggest question would be, does the 5th amendment, which last I check still exists, apply to handing over incriminating evidence? If it is applicable here, can a judge hold her in contempt for failing to do so (seems improbable).
Even more interesting, what if she nuked the password? One of the neat tricks for getting encrypted gear through border checks is to use a long, random string, mail it to yourself back home, and tell the customs Jackass "I won't know the password until a letter arrives in a few days, jackass." The extension of that would be to keep it in a file and shred said file if The Man comes a knocking. It's quite possible that the password is completely unrecoverable. Then what?
One of the redeeming things about being cursed with interesting times is that we get fun disputes like this one to ponder.
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At first I was against this, but now that I think about it, it makes sense. I think the key is that there is probable cause that there is incriminating evidence on the computer.
For an analogy, if police have PC that you have something illegal in your home, they get a warrant to search your house. You can either let them in (decrypt the files) or they'll knock the door down (crack the encryption).
Since the second option here isn't feasible, the authorities are finding themselves in the unusual position of saying, "open the door or else". I'm interested to see what the consequences would/will be for refusing to comply.
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Yeah, I think I'm with the government on this. It's not self-incrimination. They have the location of the evidence, they just need a key. I was going to post the same analogy as Fiery Winds.
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"... nor shall be compelled in any criminal case to be a witness against himself..."
Sounds like the government is forcing her to be a witness against herself by making her provide evidence against herself. It's the government's burden to gather evidence to prove someone guilty. Not for them to demand you provide it for them. Isn't that at the heart of that line of the amendment in the first place?
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I'm interested to see what the consequences would/will be for refusing to comply.
She'll get tossed in jail for contempt of court. Her only hope at that point will be finding a lawyer who can convince the judge that this falls under the Fifth Amendment. It's a tough call.
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"... nor shall be compelled in any criminal case to be a witness against himself..."
Sounds like the government is forcing her to be a witness against herself by making her provide evidence against herself. It's the government's burden to gather evidence to prove someone guilty. Not for them to demand you provide it for them. Isn't that at the heart of that line of the amendment in the first place?
Gotta agree with this.
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"... nor shall be compelled in any criminal case to be a witness against himself..."
Sounds like the government is forcing her to be a witness against herself by making her provide evidence against herself. It's the government's burden to gather evidence to prove someone guilty. Not for them to demand you provide it for them. Isn't that at the heart of that line of the amendment in the first place?
If someone is hiding evidence in a safe they own, the cops can get a warrant. Don't see how this is fundamentally any different.
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While I don't think it's what Madison had in mind, a nifty consequence of the fifth amendment is that in FW's analogy, you can tell the cop to break the door down because you're not going to do his job for him. Johnny will then break it down and search your house. Same thing applies here. Encryption's not an impenetrable fortress. Amazingly tough, but crackable in theory. Not sure why she should be compelled to aid them in their investigation when they technically can proceed without her.
As for whether or not this actually falls under self incrimination, that appears to be undecided. As I understand it, a person can be compelled to fork over the key to the safe in their bedroom. However, the key is a physical object. I don't believe it's been established that they can demand that the same person fork over the combination to the padlock. Presumably it's never come up since combination locks don't really impede Johnny too much in his work. Yet the combination is a product of the person's mind. That makes it a different situation.
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"... nor shall be compelled in any criminal case to be a witness against himself..."
Sounds like the government is forcing her to be a witness against herself by making her provide evidence against herself. It's the government's burden to gather evidence to prove someone guilty. Not for them to demand you provide it for them. Isn't that at the heart of that line of the amendment in the first place?
If someone is hiding evidence in a safe they own, the cops can get a warrant. Don't see how this is fundamentally any different.
Because the cops will then enter your house with the warrant, locate the safe and find a way to crack it. If they can't crack it then tough shit for piggy. They can scream to a jury that there is evidence in the safe until they're blue in the face but, until they prove it it doesn't mean a thing. And, as we already know from reading the 5th, you can not be compelled to deliver evidence against yourself and that's what this judge is ordering this woman to do. It's a direct violation of her civil rights.
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Even more interesting, what if she nuked the password? One of the neat tricks for getting encrypted gear through border checks is to use a long, random string, mail it to yourself back home, and tell the customs Jackass "I won't know the password until a letter arrives in a few days, jackass." The extension of that would be to keep it in a file and shred said file if The Man comes a knocking. It's quite possible that the password is completely unrecoverable. Then what?
I felt dumb as dirt reading this.
What is "encrypted gear"? you mean files on a computer right?
Either way why even bother making a long password and mail it to yourself when you can tell the checker that you did even if your password was 1234.
And why would someone in customs turn your laptop on and have time to search it for encrypted files AND asks you to open it without you giving them an incredibly suspicious reason to? Nobody has been abused in airports as much as I have but they never hinted they wanna see anything on the laptop, which is always with me.
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Even more interesting, what if she nuked the password? One of the neat tricks for getting encrypted gear through border checks is to use a long, random string, mail it to yourself back home, and tell the customs Jackass "I won't know the password until a letter arrives in a few days, jackass." The extension of that would be to keep it in a file and shred said file if The Man comes a knocking. It's quite possible that the password is completely unrecoverable. Then what?
I felt dumb as dirt reading this.
What is "encrypted gear"? you mean files on a computer right?
Either way why even bother making a long password and mail it to yourself when you can tell the checker that you did even if your password was 1234.
And why would someone in customs turn your laptop on and have time to search it for encrypted files AND asks you to open it without you giving them an incredibly suspicious reason to? Nobody has been abused in airports as much as I have but they never hinted they wanna see anything on the laptop, which is always with me.
1234 or any relatively short password could be memorized easily. A long one is easy to forget. She can say without lying she doesn't know it. Short ones are also more likely to be broken by brute force, although you don't need to have too long of one if it happens to be hard to automate entry. ...it depends on the encryption method. Securing information usually requires computationally difficult keys to figure out. I think saying long just tries to capture that idea; Being specific would require knowing more specifics. Just a guess.
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My initial feeling was they shouldn't be allowed to order her. ...but I think they have a point, illustrated by some of the aforementioned analogies here. The encryption is a key to a location, not evidence itself.
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Even more interesting, what if she nuked the password? One of the neat tricks for getting encrypted gear through border checks is to use a long, random string, mail it to yourself back home, and tell the customs Jackass "I won't know the password until a letter arrives in a few days, jackass." The extension of that would be to keep it in a file and shred said file if The Man comes a knocking. It's quite possible that the password is completely unrecoverable. Then what?
I felt dumb as dirt reading this.
What is "encrypted gear"? you mean files on a computer right?
Either way why even bother making a long password and mail it to yourself when you can tell the checker that you did even if your password was 1234.
And why would someone in customs turn your laptop on and have time to search it for encrypted files AND asks you to open it without you giving them an incredibly suspicious reason to? Nobody has been abused in airports as much as I have but they never hinted they wanna see anything on the laptop, which is always with me.
Well for one thing, I don't really want to test my ability to lie vs. a trained professional's ability to tell if I'm lying. There's a great deal to be said for plausible deniability. As for airport checks, I have no idea exactly when they'll search your digital belongings, but there are enough examples floating around to suggest that they can and will. I know the Canadians are pretty intrusive about such things. Also, people who're coming back from Thailand, Vietnam or Cambodia are likely to get hassled quite a bit. I would also surmise that thumb drives are a bigger point of interest, since they're smaller and better organized than the contents of an OS.
And then of course there's Ben Gurion, where if they can't boot it up they'll take it out back and shoot it, but you just sort of expect that from those guys.
My initial feeling was they shouldn't be allowed to order her. ...but I think they have a point, illustrated by some of the aforementioned analogies here. The encryption is a key to a location, not evidence itself.
The safe analogy is somewhat tricky. Safes don't generally alter their contents to make it useless. It's merely a secured storage. A completely different, yet equally apt, analogy would be a guy who invents his own language, and writes all of his records in a shorthand version of that language. Would the court be able to force him to translate the data? In effect, that's what's happening here since the encryption is unique to the passkey that she events herself.
It really is a troubling thing. I can certainly understand the notion that it would make future prosecutions incredibly difficult if we're allowed to withhold anything we can encrypt. Yet at the same time, that prosecution actually is difficult should really be viewed as an advantage of a free society, rather than a hindrance, shouldn't it?
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It is a troubling thing to think about. That's part of what makes it so interesting. if we give authority a right to gather data as evidence, then encryption methods designed to prevent that possibility probably have to be considered some sort of unlawful obstruction. That doesn't feel right, unfortunately, but is the other option to just allow an easy loophole to protect evidence that could be used against you?
I don't know how I feel, but the government does have a point.
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Hrrrrmmmm well this is very interesting. I mostly fall on the side of the suspect here. "You can take it, but if you can't break it, not my fault".
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Fascinating case.
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Hrrrrmmmm well this is very interesting. I mostly fall on the side of the suspect here. "You can take it, but if you can't break it, not my fault".
That's actually the biggest problem with the government's position. Technically, and as far as they can tell, they already have the evidence they sought in their possession. They just don't understand it. What they're asking isn't for the woman to hand over critical evidence, but for her to translate it for them.
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I fall on the side of the defendant. If the government can't crack her encryption, then they can't prove their case. She shouldn't be required to give them the answer they need to convict her. That doesn't even make sense.
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I'm with the government on this one. If files existed on a third party computer that had nothing to do with the government or the defendant and there was substantial evidence that those files could lead to a breakthrough in the case a warrant or subpoena could be issues to make that third party unencrypt the files and make them available.
As far as I'm concerned the computer just happens to belong to the lady, but it's still the case that no one is forcing a confession from her. If she complies and nothing is found it would help her. This is just a case of wanting to review potential evidence, like watching a private surveillance video as far as I'm concerned.
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The fifth amendment is neither limited to full confessions, or contingent upon whether or not the prosecution finds the testimony useful. You can't be forced to provide testimony against yourself, which is what they're demanding.
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But is providing testimony the same as providing evidence?
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But is providing testimony the same as providing evidence?
In a legal context, I do not believe so. The problem here is that the line separating the two is so fuzzy as to be nonexistent. I'd say that in this case she's actually being compelled to do both. Hence the dilemma.
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I fall on the side of the defendant. If the government can't crack her encryption, then they can't prove their case. She shouldn't be required to give them the answer they need to convict her. That doesn't even make sense.
I'm with Hef here. Its a clear violation of her fifth amendment rights.
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If it really is then just keep her locked up until they can break the encryption. :p
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I fall on the side of the defendant. If the government can't crack her encryption, then they can't prove their case. She shouldn't be required to give them the answer they need to convict her. That doesn't even make sense.
Pretty much this.
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Technically, and as far as they can tell, they already have the evidence they sought in their possession. They just don't understand it. What they're asking isn't for the woman to hand over critical evidence, but for her to translate it for them.
If they can't decrypt the drive, then how can they tell that they already have the evidence they are seeking? They don't know for sure what is on the drive, if anything.
-If "evidence" is on the the drive, they obviously are not in posession of said evidence, or they would use it. Plainly stating that evidence is likely on there is not the same as incriminating evidence actually being there. That would be for the authorites to prove.
-She knows where the "evidence" supposedly is and the authorites cannot get to it.
-She cannot be forced to give up information that would self incriminate.
What else is there?
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At first I was against this, but now that I think about it, it makes sense. I think the key is that there is probable cause that there is incriminating evidence on the computer.
For an analogy, if police have PC that you have something illegal in your home, they get a warrant to search your house. You can either let them in (decrypt the files) or they'll knock the door down (crack the encryption).
Since the second option here isn't feasible, the authorities are finding themselves in the unusual position of saying, "open the door or else". I'm interested to see what the consequences would/will be for refusing to comply.
Excellent analogy and it is exactly where I find myself on this.
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Since I work for one of the most well-respected criminal defense attorneys in the United States, I'm sending him this and asking him for an opinion. This is the guy I will be asking. (https://www.harveysilverglate.com/)
I will post it here when he replies.
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The portion of the Bill of Rights which is relevant:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
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nor shall be compelled in any criminal case to be a witness against himself,
The "self incrimination" clause in the Constitution protects your ability to not stand witness against yourself. It does not mean that you cannot ever self incriminate yourself, or that you are fully protected from ever leading to evidence which incriminates you. As Barto points out, you are forced to hand over a key for a safe in a search warrant, and the encryption is perfectly analogous to a key. That kind of protection simply does not apply here, as we're not talking about a trial, taking witness, or anything like that. The closest comparison would be search warrants. The man doesn't have the right to go into your home and search around for incriminating evidence, at will, but he certainty does have the right to get a search warrant to look for evidence.
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As I also pointed out, this isn't entirely analogous to the safe/key, either. It's closer to a combination lock, and I don't know that it's ever been established you can be compelled to disclose a combination. Like I said, it's probably never come up before. But aside from the safe metaphor, it's also pretty similar to the created language that I referred to. Can you be compelled to teach the prosecution a shorthand you conjured up for your bookkeeping activities? It's the same situation, where the evidence is already in their possession, yet inaccessible without revealing testimony from the defendant. In either case, you're being asked to produce the contents of your own mind.
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As Barto points out, you are forced to hand over a key for a safe in a search warrant
Whether it be a key or a combination to a lock... I didn't realize that you could be given a warrant for such things. I thought warrants were for search and seizure. If they don't find it, oh well.
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In either case, you're being asked to produce the contents of your own mind.
But can it really be made analogous to being a witness against yourself? I just don't think it can be. The constitution doesn't protect you from keeping silent on the contents of your own mind, it keeps you protected from taking the stand, in a trial, and verbally incriminating yourself. Without ever having studied this exact issue, I'd be willing to wager that this is in the constitution to protect against torture and forced false testimonials, and was never intended to be able to let a women hide and forever keep information away from prosecutors, even though it's technically in their possession. Let's not forget that the Bill of Rights was penned well before any conception of computers was existent, nor, I'm sure, a very secure way of locking out information from the outside world.
Of course, you can't actually force the women to spill the beans. She'll be found in contempt though, and I doubt the Supreme Court (especially this Supreme Court) will side with the woman.
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It just seems that the burden of proof is on the prosecution, not the defendant. If they can't prove that there is evidence on the laptop, then there is no evidence on her laptop. They can't meet the burden of proof.
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If they can't prove that there is evidence on the laptop, then there is no evidence on her laptop. They can't meet the burden of proof.
Isn't that like saying because you can't prove god exists, he doesn't exist? Or that because you can't prove god doesn't' exist, he does exist?
We're not talking about this being used to somehow prove she committed bank fraud. It's about the fact that there is enough evidence to warrant a search warrant, so that proof can be gotten.
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The constitution doesn't protect you from keeping silent on the contents of your own mind, it keeps you protected from taking the stand, in a trial, and verbally incriminating yourself.
That seems like a pretty narrowly defined interpretation, that I'm not sure is actually valid.
In any case, here are my thoughts. I've been reading some of the discussion elsewhere (ars techinca has a ton of good debate happening on this matter). One of the things that's caused me the most trouble was one remark, which I'll have to paraphrase. Somebody said that the Bill of Rights was in place to protect us all from the law, not to help us break it. As much as I'd like to, I can't refute this. It's just a clear and succinct interpretation that's almost certainly what Madison et al had in mind. Where I depart with that interpretation is how it effects things in the future, which as we all agree bears no resemblance to what they could have foreseen.
Part of living in a free society is living with risk. A happy-go-lucky schizophrenic might shoot up a political rally. Nineteen assholes might crash planes into your office. Creepy fucks might look at pictures they're not supposed to. People might commit crimes which you're obligated to let them get away with. There are reasonable things that can be done to prevent such acts, but they all have to be weighed against the cost as they affect the rest of our freedoms. Any of these things could be prevented, but we'd wind up living in a society that would terrify Benito Mussolini. Ideally, what we want is to tailor each attempt to mitigate these occurrences to cause the least possible infringement upon liberty.
Of course, that's easier said than done. There are always gray areas, and fuzzy lines like we're seeing here. There isn't any well defined way of handling these things; only best judgement. In these situations, my preference would be to try my damnedest to err on the side of freedom. If there's a problem, address that once it's established. What I'm opposed to is automatically taking the heavy-handed approach, and then trying to take back authority we gave the government later if we decide that it was too much. That never works. I'm looking for incremental approaches to safeguard freedom, rather than the blunt force approach that the law and order types tend to want to start with. One's much easier to tweak than the other.
As all of that pertains to this instance, there's a great deal to be lost by deciding that a person can be forced to divulge information that might convict them. Particularly if you start to apply it to very likely scenarios that will be coming in the future. Much like the recent GPS case and AJ Sotomayer's opinion, we need to be looking forward when establishing what is and isn't acceptable. Personally, I'd rather be safe than sorry.
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The constitution doesn't protect you from keeping silent on the contents of your own mind, it keeps you protected from taking the stand, in a trial, and verbally incriminating yourself.
That seems like a pretty narrowly defined interpretation, that I'm not sure is actually valid.
Oh, the two spill over, and definitely in an investigation (for instance, your Miranda right to keep silent), but it's important to keep in mind just what the 5th amendment does and does not protect. Giving up an encryption key in and of itself cannot lead to you be incriminating, and it itself is not incriminating evidence.
And just to be clear, that's me giving a constitutional argument. I'm not entirely sure where I stand, I much more agree with this
Of course, that's easier said than done. There are always gray areas, and fuzzy lines like we're seeing here. There isn't any well defined way of handling these things; only best judgement.
Computers and the internet bring about more social change than humans can keep up with. It'll be a while before this, piracy, and many other digital Right concerns, are resolved.
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And just to be clear, that's me giving a constitutional argument. I'm not entirely sure where I stand, I much more agree with this
Of course, that's easier said than done. There are always gray areas, and fuzzy lines like we're seeing here. There isn't any well defined way of handling these things; only best judgement.
Computers and the internet bring about more social change than humans can keep up with. It'll be a while before this, piracy, and many other digital Right concerns, are resolved.
OK fine. Does it make since to consider the cumulative consequences of that best judgement, or do we decide each and every issue without considering where it leads us? As I suggested earlier, it's actually pretty damned difficult to take power back once it's allotted. Once again, erring on the side of freedom is always a reasonable course.
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If they can't prove that there is evidence on the laptop, then there is no evidence on her laptop. They can't meet the burden of proof.
Isn't that like saying because you can't prove god exists, he doesn't exist? Or that because you can't prove god doesn't' exist, he does exist?
No.
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Yeah, I'm not seeing that connection either. Legally, reality is what you can prove. Faith has no such restriction, and is actually pretty much the opposite of requiring proof.
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If they can't prove that there is evidence on the laptop, then there is no evidence on her laptop. They can't meet the burden of proof.
Isn't that like saying because you can't prove god exists, he doesn't exist? Or that because you can't prove god doesn't' exist, he does exist?
No.
I'm fine with you saying there isn't enough evidence to convict, without being able to get on the laptop, but it's a huge leap from there to say that there is then "no evidence on her laptop."
I believe it's a fallacy, something like proof from negative or something, which is why I brought up the religious connection.
And just to be clear, that's me giving a constitutional argument. I'm not entirely sure where I stand, I much more agree with this
Of course, that's easier said than done. There are always gray areas, and fuzzy lines like we're seeing here. There isn't any well defined way of handling these things; only best judgement.
Computers and the internet bring about more social change than humans can keep up with. It'll be a while before this, piracy, and many other digital Right concerns, are resolved.
OK fine. Does it make since to consider the cumulative consequences of that best judgement, or do we decide each and every issue without considering where it leads us?
Well, we take up new technology without considering where it leads us, so in a sense, I'd say we're forced to deal with these things on a case by case issue. But what issue are you talking about exactly? Everything to do with our Rights and the internet/computer technology, or more specific to this kind of case? Because if the latter, I'd say that's already the case with search warrants, so I don't see how it's all that big of a leap to make the equivalent true for computer storage / property.
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Well, we take up new technology without considering where it leads us, so in a sense, I'd say we're forced to deal with these things on a case by case issue. But what issue are you talking about exactly? Everything to do with our Rights and the internet/computer technology, or more specific to this kind of case? Because if the latter, I'd say that's already the case with search warrants, so I don't see how it's all that big of a leap to make the equivalent true for computer storage / property.
Well, again, I'm not so sure the warrant thing is applicable here. They already have what they were looking for, they just need help or time to translate it. Remember, encryption isn't impenetrable. It's merely time consuming.
And something that hasn't been thrown into the mix here is that the only reason they're up shit creek is because they didn't bother to look forward during their investigation. The thing that gives people the greatest pause here is that it would set a precedent where anybody could encrypt anything and it's like a get out of jail free card. Truth is, there are tons of back doors to be exploited. If you know that what you're looking for is encrypted, you get a warrant to plant a key logger, or you install a camera to watch her log on, or you wait until she's logged on and then cold boot her laptop. There are ways of doing what they want, as long as they're used in advance, and not after you've busted them. Frankly, the detectives fucked this up, and now they're seeking her help to bail them out.
As for your question, I'm kind of interested in seeing some precedent that says that a person is secure in their thoughts. That's actually what this comes down to, IMO. I really don't see any reason to start chipping away at a persons right to remain silent. Again, since this is a very fuzzy area, I don't see it as strictly the provision of evidence. I see it as equally pertinent to providing self incriminating testimony. The two seem inseparable in this instance.
BTW, there actually is a precedent for your point of view in this. Some dumbass let a border guard see some naughty pictures on his laptop coming back from Canada. Before they could copy and log the evidence, his laptop went into sleep mode and encrypted itself. He naturally told them he had forgotten the key. A judge ruled that in this case, that evidence was in there was a foregone conclusion, and therefore self incrimination was no longer a consideration. Simply put, he can't incriminate himself by providing what they already know. That seems to be the basis of the judges decision here. The problem is that it's not a foregone conclusion that anything on this woman's laptop will be evidence to nail her. Since they don't really know exactly what the contents are, they can't just assume them it to be non-incriminating.
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As for your question, I'm kind of interested in seeing some precedent that says that a person is secure in their thoughts. That's actually what this comes down to, IMO. I really don't see any reason to start chipping away at a persons right to remain silent. Again, since this is a very fuzzy area, I don't see it as strictly the provision of evidence. I see it as equally pertinent to providing self incriminating testimony. The two seem inseparable in this instance.
See, where I draw the line is, say you're recording her giving you the encryption key, and you play that recording in trial. It would be completely irrelevant, and itself could not lead to any sort of conviction. As you point out, there could very well not be incriminating evidence on the laptop, just like there cannot be any incriminating evidence in a search the old fashion way.
To go back to the key example, that can also be considered part of your thoughts. You know where the key is, you know what key works, etc; and there, you are required to fess up your knowledge to give the key over, so that the search can continue. A pure protection of your thoughts would mean you aren't required to fork that key over (course, a safe is a lot easier to break into than an encrypted computer).
I guess I just don't see the big difference, in terms of privacy and our rights, between a keylogger, and asking her to hand over the information. Though, where I think I'm starting to agree with you is if you actually punish the women for remaining silent, contempt of court and whatnot. Overall, I think your points about the investigation being possibly done another way, where this kind of problem doesn't arise, is the most powerful.
This certainly is a conundrum though, specifically becuase of the possible "get out of jail free card."
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Like I said, the get out of jail free card is somewhat moot, since cops are almost certainly going to find a way to get your key without you being compelled to give it to them. The guys in this case just sucked.
As for the safe analogy, I still don't find it particularly apt. What are your thoughts on the unknown language analogy? If I invent a new language to conduct my naughty business in, should I be compelled to teach it to the prosecution so they can convict me? It seems to me that this is just as comparable a scenario. The only difference is that a computer program was used to craft the language.
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Like I said, the get out of jail free card is somewhat moot, since cops are almost certainly going to find a way to get your key without you being compelled to give it to them. The guys in this case just sucked.
Which is why I'm maybe leaning to oppose this order, because it would force law enforcement to handle the investigation better, thus basically making the conundrum sorta go away. There's a lot of time we have to throw out evidence because it was obtained illegally, and I've personally benefited from that myself. The pragmatist in me just cries out at this though, because it all gets so fucking similar in the end.
I'm still not sure it's protected as the Constitution currently reads, however (and if you want to get into the discussion of how this should progress, I'd say the opinion of 9 people in the Supreme Court, especially the 9 we have now, is more worrisome than a legislative process).
As for the safe analogy, I still don't find it particularly apt. What are your thoughts on the unknown language analogy? If I invent a new language to conduct my naughty business in, should I be compelled to teach it to the prosecution so they can convict me? It seems to me that this is just as comparable a scenario. The only difference is that a computer program was used to craft the language.
I think the "only difference" is a big one though. We're talking about a rather small phrase, something more similar to a key than a full blown language. It's a keyword, that unlocks the encryption. That's a lot different than fully translating an entire language. But no, I don't think it would be fair to say that someone has to help the investigators crack your secret langauge.
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Looks like it's showtime. The Fifth Circuit pretty much told her to GTFO, and the original judge has given her until Monday to turn over and unencrypted version of her hard drive.
Her attorney has suggested that she intends to comply with the court's order, but also hinted that she might not have any clue what the password is, due to either her forgetting, or the encryption being set up by another party (presumably her husband). This poses yet another issue. What if the woman truly doesn't know the password? Is it reasonable to hold her in a cell until she turns over information that she actually doesn't have?
My guess is that they'll put the laptop in front of her, she'll confidently type in a 14 character key, then look puzzled when it won't work. Try again a couple of times and then tell them she did her best, now what. Now what?
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Is it one of those systems where if you type in the wrong password too many times, it locks up? That would be cool. Intentionally blow it five times or whatever, then show everyone the message on screen that clearly says that it's locked up and can only be opened by... Chuck Norris? I don't know how that kind of thing works.
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Is it one of those systems where if you type in the wrong password too many times, it locks up? That would be cool. Intentionally blow it five times or whatever, then show everyone the message on screen that clearly says that it's locked up and can only be opened by... Chuck Norris? I don't know how that kind of thing works.
Hmm, that's a good point. I have a Kanguru Defender Basic 256-bit AES Encrypted Flash Drive that will literally self-destruct if you put in the wrong password 5 times in a row. That's actually a very common feature now with a lot of encryption schemes.
Still haven't heard back from Harvey (my lawyer friend), but I know he's busy with a murder appeal right now.
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Is it one of those systems where if you type in the wrong password too many times, it locks up? That would be cool. Intentionally blow it five times or whatever, then show everyone the message on screen that clearly says that it's locked up and can only be opened by... Chuck Norris? I don't know how that kind of thing works.
Hmm, that's a good point. I have a Kanguru Defender Basic 256-bit AES Encrypted Flash Drive that will literally self-destruct if you put in the wrong password 5 times in a row. That's actually a very common feature now with a lot of encryption schemes.
Just because it's scrambled doesn't mean that it can't be copied. As one of your colleagues suggested in your article, cloning the drive would be SOP before trying to get anything out of it. With a USB drive it'd be more difficult since you probably can't even mount the thing, but with a basic HDD it shouldn't be too much trouble at all for an actual forensics lab. Hell, if they can pull the data out of powered-down ram, this should be a snap. With the data copied, there's no risk of it self destructing.
Also, if they know what program encrypted the drive, and the bootloader should tell them that, then they can probably emulate it without the multiple attempt safeguards. I'm not even sure they'd need to emulate the actual software. They might just need to know which algorithm was used.
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due to either her forgetting, or the encryption being set up by another party (presumably her husband).
That would actually solve the entire issue though. Then the third party just gets subpoenaed, and this was all for nothing.
My guess is that they'll put the laptop in front of her, she'll confidently type in a 14 character key, then look puzzled when it won't work. Try again a couple of times and then tell them she did her best, now what. Now what?
At what point do lie detectors become acceptable? When the judge asks how they plea, it's theoretically possible for us to know for certain whether that person is lying or not, and not the polygraph.
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My guess is that they'll put the laptop in front of her, she'll confidently type in a 14 character key, then look puzzled when it won't work. Try again a couple of times and then tell them she did her best, now what. Now what?
At what point do lie detectors become acceptable? When the judge asks how they plea, it's theoretically possible for us to know for certain whether that person is lying or not, and not the polygraph.
That makes things even worse. Now she truly is being forced to testify against herself, this time in a contempt of court charge. You can argue that being ordered to fork over the key isn't self-incriminating, but I don't think you could make that claim if she's being forced to reveal whether or not she's lying to protect herself.
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My guess is that they'll put the laptop in front of her, she'll confidently type in a 14 character key, then look puzzled when it won't work. Try again a couple of times and then tell them she did her best, now what. Now what?
At what point do lie detectors become acceptable? When the judge asks how they plea, it's theoretically possible for us to know for certain whether that person is lying or not, and not the polygraph.
That makes things even worse. Now she truly is being forced to testify against herself, this time in a contempt of court charge. You can argue that being ordered to fork over the key isn't self-incriminating, but I don't think you could make that claim if she's being forced to reveal whether or not she's lying to protect herself.
Oh, I'm just bringing up hypotheticals. I know it's definitely unconstitutional, but there's nothing to say that can be changed, or that the Supreme Court doesn't find some insane ruling that somehow justifies it. If technology can make it easier to hide some crimes, it can also make it much easier to ascertain guilt.
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Is it one of those systems where if you type in the wrong password too many times, it locks up? That would be cool. Intentionally blow it five times or whatever, then show everyone the message on screen that clearly says that it's locked up and can only be opened by... Chuck Norris? I don't know how that kind of thing works.
Hmm, that's a good point. I have a Kanguru Defender Basic 256-bit AES Encrypted Flash Drive that will literally self-destruct if you put in the wrong password 5 times in a row. That's actually a very common feature now with a lot of encryption schemes.
Just because it's scrambled doesn't mean that it can't be copied. As one of your colleagues suggested in your article, cloning the drive would be SOP before trying to get anything out of it. With a USB drive it'd be more difficult since you probably can't even mount the thing, but with a basic HDD it shouldn't be too much trouble at all for an actual forensics lab. Hell, if they can pull the data out of powered-down ram, this should be a snap. With the data copied, there's no risk of it self destructing.
Also, if they know what program encrypted the drive, and the bootloader should tell them that, then they can probably emulate it without the multiple attempt safeguards. I'm not even sure they'd need to emulate the actual software. They might just need to know which algorithm was used.
Yep, clone first, then make a copy of your image, then always work with the copy. Some encryption programs make cloning extremely difficult (PGP and TrueCrypt are a pain in the ass) but there are none that I am aware of that can outright stop a successful full forensic drive image from being created. Once you have a forensic image you can keep making copies and try as many things as you like without risk.
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Well, I think the artcile states that the problem is not how to do it but the time it would take to do it.
And I completly agree with the judge here. A court should be able to ask someone to unencrypt their own computer if they have sufficient reasons to think that it holds important proof.
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And I completly agree with the judge here. A court should be able to ask someone to unencrypt their own computer if they have sufficient reasons to think that it holds important proof.
And I think that most of us would have a hard time refuting a practical statement like that. The problem is that it might (or might not) run entirely afoul of our Constitution. As you've seen in DTF, we tend to get pretty riled up about the Constitution up here (at least the parts that we like).
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Well, I'm not aware of what the constitution says about this but I think everyone should bear in mind that it was written hundreds of years ago when society was completley different and when all the technology that we have nowadays wasn't in anybodys mind so maybe the judges decision does go against what's currently written and in that case it should be revoked, or used as a starting point for getting the laws adjusted to the way the world is now.
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Well, I'm not aware of what the constitution says about this but I think everyone should bear in mind that it was written hundreds of years ago when society was completley different and when all the technology that we have nowadays wasn't in anybodys mind so maybe the judges decision does go against what's currently written and in that case it should be revoked, or used as a starting point for getting the laws adjusted to the way the world is now.
Certainly the authors of the Bill of Rights didn't have 256-bit encryption in mind, but the principle is sound regardless of the technology. A person can't be made to bare witness against themselves. It's straight forward, and it's a kick ass element of a free society. Whether or not it's applicable in this case is a fascinating question, which none of us have quite figured out yet, but even the people who say it isn't would defend the principle vehemently.
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That is a valid point but I don't see how asking for someone to unencrypt their hard drive is any different than asking someone to open the door to their house. In both cases it can be considered that doing it might lead the police into finding evidence yet no one argues that if the police comes into your house with a warrant from the judge you have to open the door.
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That is a valid point but I don't see how asking for someone to unencrypt their hard drive is any different than asking someone to open the door to their house. In both cases it can be considered that doing it might lead the police into finding evidence yet no one argues that if the police comes into your house with a warrant from the judge you have to open the door.
Personally, I believe this analogy works well. Same as the analogy with a safe. Providing access to something is not the same as testifying against yourself. The more I think about it, the more I think it will stand up to any constitutional challenges.
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That is a valid point but I don't see how asking for someone to unencrypt their hard drive is any different than asking someone to open the door to their house. In both cases it can be considered that doing it might lead the police into finding evidence yet no one argues that if the police comes into your house with a warrant from the judge you have to open the door.
Personally, I believe this analogy works well. Same as the analogy with a safe. Providing access to something is not the same as testifying against yourself. The more I think about it, the more I think it will stand up to any constitutional challenges.
While I agree with your side of the argument, the difference here is the police will say "Open the door or we'll break it down". If you carry that into your analogy we are now saying "Give us the code or we will throw you in jail until we break the encryption". We don't force people to open doors, we just open them ourselves if need be, and that isn't applicable in this case.
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No analogy is going to map with 100% acuity to this situation, we can only give approximate examples, because this is a unique case based on relatively new circumstances. But I do not believe that providing the password to an encrypted hard drive rises to the level of self-incrimination, just as I do not believe that providing the combination to a safe rises to that level.
And I'm pretty sure that's how the courts will end up ruling if this thing makes it to the federal appellate court.
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They're compelling her to assist in her own prosecution. As far as I'm concerned we're under no obligation to do so. Like I said before, sometimes the cost of a free society is not being able to burn somebody. Such is life.
And there's still the equally important question of what happens if she forgot or destroyed the password. Can you hold somebody for failing to turn over something they can't actually produce?
And another issue I haven't brought up yet: an encrypted file/HDD looks exactly like a shredded file/HDD; bit after bit of perfectly random data. That's one of TrueCrypt's big selling points; plausible deniability. What happens if she says that it isn't encrypted but wiped?
Again, under either of those scenarios, it's not a key she's being asked to produce, but the contents of her own mind with regard to whether or not she's lying about having access to the key, or whether or not the drive is even encrypted. There's no longer any question about how that relates to the 5th amendment.
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They're compelling her to assist in her own prosecution. As far as I'm concerned we're under no obligation to do so.
The case boils down to whether or not the password is "testimonial" or not. I do not believe it is and I do not believe the court will rule in her favor.
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They're compelling her to assist in her own prosecution. As far as I'm concerned we're under no obligation to do so.
The case boils down to whether or not the password is "testimonial" or not. I do not believe it is and I do not believe the court will rule in her favor.
I don't think it boils down to that one issue at all. I'd say it's more a matter of whether or not you're obligated to assist the state in prosecuting you. It's not impossible for the state to get the info, it's just a matter of severe inconvenience. They want her help to expedite it. Not her responsibility.
And again, this wouldn't be an issue if they'd conducted their investigation better to begin with. If you'd been in charge of this investigation, would you have busted her before ascertaining the encryption key?
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I think the ABC news blog post (https://abcnews.go.com/blogs/technology/2012/01/can-a-court-make-you-give-up-your-password/) about this case has both sides of the argument pretty fairly and equally represented. Here's why I think she's going to have to give them the password. Emphasis added by me:
The Fifth Amendment, among other things, protects people from being compelled to give from the content of their mind evidence against themselves – called “testimonial” evidence. The court can, however, compel one to give up “non-testimonial” evidence, which includes things like DNA, blood, voice and handwriting samples.
The analogy being argued then is this: Is a password more like a key to a lockbox (non-testimonial) or a combination to a safe (testimonial)? The law allows authorities to compel you to give up the key, but not the combination.
“The Fifth Amendment means the government can’t compel you to turn over testimonial information that would reveal the contents of your mind and tend to incriminate you,” Marcia Hofmann, a senior staff attorney at Electronic Frontier Foundation, which filed a brief in support of Fricosu, told ABC News. “A password is something you know, something that’s in your mind. It’s a different thing entirely than turning over a physical key.”
Prosecutors contend a password is more like a key, and if Fricosu doesn’t hand it over, it could set a dangerous precedent.
“Failing to compel Ms. Fricosu,” Assistant U.S. Attorney Patricia Davies wrote in a court filing, “amounts to concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers … and thus make their prosecution impossible.”
Prosecutors also say it isn’t the password that matters to them, that they don’t even need to know it. It’s what’s behind the password that they care about. “The government seeks the strongbox’s contents,” Davies wrote, “not the ability to open the strongbox for itself.”
Now don't misunderstand where I'm coming from - my personal views are that she should not have to say anything. After all, she does have the "Right to remain silent" and that right should be respected. But with that said, I direct you to the portion of the above quote that I have made bold and I ask you: Do you REALLY believe that in the age of terrorists flying planes into buildings that our courts are going to set this kind of precedent?
Maybe I'm just too cynical because of my personal history with the law, but I don't think they're going to open that can of worms.
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What I believe is the right call and what the courts might eventually decide are two very different things. As I recall, you share my disdain for the current judiciary.
As for the bolded part of your article, I call bullshit for a variety of reasons. First off, we already grant concessions for the sake of freedom, and hopefully we will continue to do so. That's a very important thing in my book. Second, it won't serve to defeat their efforts; only to force changes. For one thing, there's no telling how much longer encryption will stay safe from efforts to crack it. Just because it'll take twenty thousand years to brute force it today doesn't mean that it will five years from now. There's also the fact that their cracking computer might luck out and get it on the third attempt. How many people remained free for decades until the ability to test DNA became common place and allowed cold cases to be resolved?
Also, I put a pretty simple question to you which you didn't address. As somebody with experience in IT and investigations, would you have busted here before figuring out her encryption key? Which is easier, obtaining her key through the back door, or knocking the front door down?
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I don't understand the question, rephrase it please.
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What I believe is the right call and what the courts might eventually decide are two very different things. As I recall, you share my disdain for the current judiciary.
Yes, that is true.
As for the bolded part of your article, I call bullshit for a variety of reasons. First off, we already grant concessions for the sake of freedom, and hopefully we will continue to do so. That's a very important thing in my book. Second, it won't serve to defeat their efforts; only to force changes. For one thing, there's no telling how much longer encryption will stay safe from efforts to crack it. Just because it'll take twenty thousand years to brute force it today doesn't mean that it will five years from now. There's also the fact that their cracking computer might luck out and get it on the third attempt. How many people remained free for decades until the ability to test DNA became common place and allowed cold cases to be resolved?
I'm not really following your logic. All I am saying is IF the courts allow this woman to NOT provide the password to the encryption, then what is to prevent (for example) child pornographers from transporting child pornography on encrypted hard drives? After all, they cannot be compelled to reveal the passwords, right? So there's no way for anyone to prove what's on the hard drives. They could literally carry those hard drives around in a big huge panel truck that says "Child Porn" on the side of it and never be prosecuted. (I'm being facetious but you know what I mean)
Also, I put a pretty simple question to you which you didn't address. As somebody with experience in IT and investigations, would you have busted here before figuring out her encryption key? Which is easier, obtaining her key through the back door, or knocking the front door down?
I still don't understand the question, but just to be clear: I work for DEFENSE ATTORNEYS only.
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I don't believe this violates her 5a rights at all. It's simply a matter of the courts demaning that she turn over possible evidence. Regardless of whether that evidence is behind a locked file cabinet, in a safe, behind the door of secured safe room, or encrypted on a computer. It still has not violated her 5a rights in any way. She still has the right to refuse to testify, or answer questions regarding the evidence, but she cannot hide evidence, or refuse to comply with a subpeona of that possible evidence.
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I don't believe this violates her 5a rights at all. It's simply a matter of the courts demaning that she turn over possible evidence. Regardless of whether that evidence is behind a locked file cabinet, in a safe, behind the door of secured safe room, or encrypted on a computer. It still has not violated her 5a rights in any way. She still has the right to refuse to testify, or answer questions regarding the evidence, but she cannot hide evidence, or refuse to comply with a subpeona of that possible evidence.
She turned over the evidence they asked for and it's now in their possession. What they want is her help in decoding it because they don't want to take the time to do in themselves. Again, just because it could theoretically take a trillion, trillion years to crack the girl's encryption, doesn't mean that it might not take five minutes.
And out of curiosity, if the cops tell your client "we know you did it! Where'd you bury the body?", you're going to tell your client to STFU. Is this contempt of court? Admitting you know where the body is would incriminate him. Yet the body is evidence that the prosecution would have a right to access.
I don't understand the question, rephrase it please.
My point was that if they knew they were going to bust the woman, then they should have accounted for the possibility that she had encrypted her data. They conceivably had a search warrant (although in this climate, who knows), so they could have investigated her and found out her password before they put the cuffs on her. Spy on her until she types it in. Install a keylogger. Wait till she logs in and then flashbang her ass. It's really not that hard to get the information if you do it before the suspect goes into lockdown mode.
And this is part of the reason why the ominous words of the Assistant US Attorney don't really mean much to me. They'll find ways of getting what they want eventually.
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And this is part of the reason why the ominous words of the Assistant US Attorney don't really mean much to me. They'll find ways of getting what they want eventually.
And without too much effort, apparently:
Constitutional Showdown Voided: Feds Decrypt Laptop Without Defendant’s Help (https://www.wired.com/threatlevel/2012/02/decryption-flap-mooted/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired%2Findex+%28Wired%3A+Index+3+%28Top+Stories+2%29%29&utm_content=Google+Feedfetcher)
Kind of confirms my position that they were just being lazy. They weren't dealing with something impenetrable; just extremely difficult.
In related news, a different appellate court decided in another case that a ordering a defendant to provide an encryption key does violate his fifth amendment rights.
The decision by the 11th U.S. Circuit Court of Appeals said that an encrypted hard drive is akin to a combination to a safe, and is off limits, because compelling the unlocking of either of them is the equivalent of forcing testimony.
Judging from that ruling, I suspect that the question of combination locked safes has never come up. I suppose that there's never been one that they couldn't get in through other means, so there was never any cause to set a precedent.
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In principle, would this also make it unconstitutional to require me to ID myself? It's only so now if suspected of a crime, ya? If forcing me to ID myself picks up a warrant, and my arrest, I just forced into a vital piece of evidence, leading to my arrest. In some instances, say a restraining order, it could be very perfinent. Seems to me that this falls under the same umbrella.
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SCOTUS ruled 5-4 upholding a Nevada law that requires a person to identify oneself when questioned by police. I agree with Stevens in his minority opinion:
In a dissent, Justice John Paul Stevens says the Fifth Amendment protection against self-incrimination must always shield a criminal suspect who is being questioned by police. Since police may only request the name of someone they find suspicious (under the upheld Nevada statute), that person is by definition a criminal suspect who may not be compelled to make statements that might incriminate him, Justice Stevens says.
"The court reasons that we should not assume the disclosure of petitioner's name would be used to incriminate him," Justice Stevens writes. "But why else would an officer ask for it?"
Stevens adds, "A name can provide the key to a broad array of information about a person particularly in the hands of a police officer with access to a range of law enforcement databases."
https://www.csmonitor.com/2004/0622/p01s01-usju.html (https://www.csmonitor.com/2004/0622/p01s01-usju.html)
That said, there are still multiple methods of determining someone's ID without you verbally stating it. You can be searched for ID on your person, have the tags run on your car (if stopped), look up property records, etc. all while not saying a word.
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I think that's taking the paranoia a bit too far. If you're not allowing the police to ask you for your name, you're paralyzing them to a point where they can not possibly do their job.
What about how a person looks? I a killer is on the run who's been described as 6'6'' with curly hair, should the police not look at anybody? After all, you (innocent person) being 6'6'' and having that hair would be possible self-incrimination to the police.
rumborak
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I think that's taking the paranoia a bit too far. If you're not allowing the police to ask you for your name, you're paralyzing them to a point where they can not possibly do their job.
I don't think so. There are plenty of other means they can use, and plenty of instances where you're required to fork over an ID anyway (driving a vehicle comes to mind).
Regardless, Hiibel is an interesting issue. For one thing, it only applies in states that have passed a statute. It's only employed within the context of a Terry-stop, so you've got some protection (albeit minimal) there. Most importantly, the court left open the possibility that your name actually might incriminate you in some cases.
The problem I have is that it's so open to abuse that Johnny can basically demand ID from anybody for any reason and arrest them if they tell him to get bent. Terry sounds great in principle, but any cop with more than 2 days experience can articulate a reasonable suspicion, rendering it pointless. I recall an incident from my youth where some friends and I were pulled over for driving with long hair. That resulted in one of us taking a ride. In Tejas, he could have conceivably refused to ID himself (he was a passenger), but in plenty of other states you'd get busted for it. This really takes things to a different level.
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I think that's taking the paranoia a bit too far. If you're not allowing the police to ask you for your name, you're paralyzing them to a point where they can not possibly do their job.
I don't think so. There are plenty of other means they can use, and plenty of instances where you're required to fork over an ID anyway (driving a vehicle comes to mind).
Well, if you take this principle seriously, then you shouldn't be forced to register your car, have insurance, have a license etc. Those databases that exist, shouldn't exist for some people.
To be clear, I think giving your name and identifying yourself is worth any harm to your personal identity. Being able to clearly identify yourself brings quite a lot of security and benefits socially. I just still don't see how giving a key is drastically different, it's a difference of degree not of kind, and I'm not sure where the line is.
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Well, if you take this principle seriously, then you shouldn't be forced to register your car, have insurance, have a license etc. Those databases that exist, shouldn't exist for some people.
You're not forced to do any of those things. You agree to them in exchange for the right to drive an automobile. Don't like it? Buy a horse.
The result of Hiibel was something very different. Rather than agreeing to carry a license in exchange for a privilege you want, you're told that Johnny can walk up to you and demand to see ID under the threat of arrest. I don't consider that congruent to a free society.
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Rather than agreeing to carry a license in exchange for a privilege you want, you're told that Johnny can walk up to you and demand to see ID under the threat of arrest. I don't consider that congruent to a free society.
And I'm just pointing out how a "free society" is still one with some government involvement, even if it's just registering vehicles, registering licenses, etc. I know you don't disagree with this, but like I said, I'm not sure where you're drawing the line on the issue of "self incrimination," or taking witness against yourself.
I also never said I felt ID's and such should be to such a degree that you can be arrested for not having one. But I think if you don't have one, and your suspected of a crime, you're just as likely to get arrested, law or not, and it seems nonsequential to me. The benefit comes when you can prove you are not someone else, and thus don't have to deal with unnecessary bullshit. Making the system more efficient benefits everyone, and can theoretically lead to a practically more free society.
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I'm actually not viewing Hiibel in general as a matter of self incrimination, although I can imagine plenty of instances where it could be, and I suppose that the courts would have to consider those should they arise.
I'm also not flatly condemning Hiibel. I'm not sure how it really fits in with the right to remain silent, but that's a different matter. Plus, a different court already determined that Miranda didn't apply to biographical information. What I am concerned about, and it's a recurring theme in my posts, is the notion that we're all suspects. That's what's changed over the last 12 or so years. I don't feel as if we're presumed innocent anymore, and the ability for Johnny to approach me and demand my name is another indicator of that. If I've given him probable cause to hassle me, then so be it. If I'm doing something that requires me to be identifiable, okey-dokey. If I'm walking down the street, minding my own business, then who I am is of no concern of his.
Unfortunately, we've fostered an environment where we all have to be subject to suspicion, all the time. The safeguards we have in place, fancy concepts like probable cause and reasonable suspicion, don't really help us since cops don't give a shit about them. All we can really hope for is that the courts continue to flag cases as due process violations to half-way keep LEA on their side of the fence.
As it pertains to Colorado real estate fraud girl, she sounds like a real cunt. She was ripping off normal citizens and if she's guilty I hope they nail her. Yet I have no problem reconciling that with my belief that the cost of a free society is that you don't always get to burn somebody. As I said before, when we're talking about vesting The Man with even more power to supervise our daily lives, like demanding personal information, be it an encryption key or your name and DOB, then I'd much rather err on the side of not going far enough. The alternative is to give him too much power in the hopes that we can wrest it back from him once it's become too late.
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If they can't prove that there is evidence on the laptop, then there is no evidence on her laptop. They can't meet the burden of proof.
Isn't that like saying because you can't prove god exists, he doesn't exist? Or that because you can't prove god doesn't' exist, he does exist?
That's a philosophical question rather than a legal one. In courts, things that cannot be proven are generally ignored.
On a different note, the woman should've used something that supported plausible deniability, like TrueCrypt. :)
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What I am concerned about, and it's a recurring theme in my posts, is the notion that we're all suspects.
Well, I can agree with this sentiment, I just think it's a different issue, in the end. It's a social attitude towards each other, and I think if we're suspicious of each other, it doesn't fucking matter if there's a government, or not, it's going to make society a lot worse. I mean, imagine thinking your neighbor was spying on you, suspected you of something. It's impossible for societal attitudes not to affect the police, and in any world you could live in, this is going to basically end up sucking.
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The difference is that my neighbor doesn't have the ability to shuffle me into an unmarked Gulgstream and fly me off to Bumfuckistan to have my nuts electrocuted. Unlce Sammy has been known to do that.
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The difference is that my neighbor doesn't have the ability to shuffle me into an unmarked Gulgstream and fly me off to Bumfuckistan to have my nuts electrocuted. Unlce Sammy has been known to do that.
Uncle Sammy has the power to do it, because your neighbor is suspicious of you. Or, lets put it differently, if your neighbors are suspicious of you, how long do you think it would be before there was someone, some institution, doing the same?
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Well I certainly see your point. However, I'd say that the government has snatched such power for it's own devices, and the people allowed it to happen, rather than the people insisting that the government do so.
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Well I certainly see your point. However, I'd say that the government has snatched such power for it's own devices, and the people allowed it to happen, rather than the people insisting that the government do so.
Which is why I carefully phrased my question the way I did, otherwise the point would have been lost.
And I still think that, deep down, many people are suspicious of their neighbor. I mean, we're just not nearly as connected as we used to be (at least with the person next door), and as a species, we're built to be somewhat suspicious of "other" people.