DOJ: We Can Force You to Decrypt That Laptop

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Everyone is against warrantless laptop searches and all that but what if the courts order you to give them access to an encrypted computer? Isn't that self-incrimination?

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home. Because Fricosu has opposed the proposal, this could turn into a precedent-setting case.
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Simple!

"I have an encrypted drive, but this guy that refers to himself as "the key master" (I think it might be a woman) has this USB device called "the gozer" that unlocks it for me, which we do once per week to update the files. They arrange this meeting by posting a page on a web address given to me at our last meeting. The page only stays up for 5 minutes. But as you have me here so I couldn't check it, and without the "gozer" the "destroyer" has come and eaten everything :("
 
Let's say a man is on the lam, accused of robbery. Police pull him over for a traffic stop, discover there is a warrant for his arrest, arrest the man and impound his car. Searching the car, police discover a locked box under his driver seat. Do police have permission to open the box? If so, than I believe the accused should be legally required to provide the password. It is no different than a key, except the tax payer has to foot a MUCH higher bill to split open the hard drive's data versus splitting open the locked box.
 
Honestly if the person really wanted to hide something they'd use hidden volumes (i.e. hidden Truecrypt volume inside of a Truecrypt volume) for plausible deniability
 
I'm kinda on the fence about this one personally, I can kinda see where the "self incrimination" people are coming from but on the other hand is your computer functionally that much different from a safe or a file cabinet or your house? They're all used to store private stuff, so if they can get a warrant for your house, safe, or file cabinets, why not your computer? In the case of the physical objects if you refuse to open/unlock them they ask you to wait while they break it open or call in a professional to get it open.

Maybe a good compromise would be you don't have to turn over your encryption keys you just have to wait in police custody for as long as it takes them to unlock it for you, and in order to keep this from affecting my pocket book they can seize assets to help cover the cost of this unlocking.
 
DoJ vs. 5th Amendment to the Constitution of the United States

I hope this goes to the Supreme Court, to establish once and for all that nobody should be compelled to produce evidence against themselves.
 
InorganicMatter said:
Say it with me kids: Hidden Volumes.
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I did that before....than...wrote something to the outside container and it ruined the
hidden volume. Not sure if it still works like that now a days but that really sucked. It kind of made me not like hidden volumes anymore....lol (biased).
 
fattypants said:
DoJ vs. 5th Amendment to the Constitution of the United States

I hope this goes to the Supreme Court, to establish once and for all that nobody should be compelled to produce evidence against themselves.
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I concur.
 
J32P said:
I did that before....than...wrote something to the outside container and it ruined the
hidden volume. Not sure if it still works like that now a days but that really sucked. It kind of made me not like hidden volumes anymore....lol (biased).
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On truecrypt there's a option that protects the hidden volume. Not sure how well it works though.
 
Steve said:
Everyone is against warrantless laptop searches and all that but what if the courts order you to give them access to an encrypted computer? Isn't that self-incrimination?
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No, it's responding to a court-ordered subpoena. Producing documents is not self-incrimination. Besides, court orders require a higher degree of proof. So theoretically, it would not happen unless there was cause. And if a judge is willing to issue the order, he/she would be willing to issue a warrant.
 
fattypants said:
DoJ vs. 5th Amendment to the Constitution of the United States

I hope this goes to the Supreme Court, to establish once and for all that nobody should be compelled to produce evidence against themselves.
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The 5th amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

Its already in our Constitution, but once again politicians and the Justice Department feel that they are above the law and can say what is what.

Her unlocking that laptop means self incrimination, she is fully protected under the law of the USA.
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jandar said:
The 5th amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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Its already in our Constitution, but once again politicians and the Justice Department feel that they are above the law and can say what is what.

Her unlocking that laptop means self incrimination, she is fully protected under the law of the USA.
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Again it depends on what the best analogy is. If it's like unlocking a safe or file cabinet, you're screwed. If it's like decoding a written document or telling them something, maybe not.
 
Modred189 said:
No, it's responding to a court-ordered subpoena. Producing documents is not self-incrimination. Besides, court orders require a higher degree of proof. So theoretically, it would not happen unless there was cause. And if a judge is willing to issue the order, he/she would be willing to issue a warrant.
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Producing a document that states your master plan to dethrone the USA or rob a bank or hack a system is self incrimination. You are testifying against yourself in this case.
 
Modred189 said:
No, it's responding to a court-ordered subpoena. Producing documents is not self-incrimination. Besides, court orders require a higher degree of proof. So theoretically, it would not happen unless there was cause. And if a judge is willing to issue the order, he/she would be willing to issue a warrant.
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I dunno... You could have a document that says "I Done It !!!", and if ordered to produce it I bet a good lawyer could get it thrown out under self incrementation.
 
jandar said:
Producing a document that states your master plan to dethrone the USA or rob a bank or hack a system is self incrimination. You are testifying against yourself in this case.
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Look, you can make up whatever language you want. It's not true. That's not how it works in the U.S. If they put you up on the stand, you can plead the 5th. But if a warrant is issued for documents in your home, physical or electronic, you have to give them up.
 
Modred189 said:
Look, you can make up whatever language you want. It's not true. That's not how it works in the U.S. If they put you up on the stand, you can plead the 5th. But if a warrant is issued for documents in your home, physical or electronic, you have to give them up.
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But you don't have to decrypt them. If I had documents in my home that were written in my own secret language, the court couldn't demand that I translate it.
 
What happens to him if he doesn't hand over the passphrase? I realise its contempt of court but what is the penalty for that?
 
fattypants said:
But you don't have to decrypt them. If I had documents in my home that were written in my own secret language, the court couldn't demand that I translate it.
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They could. And if you refuse you would be held in contempt and you would go to jail. What makes you think otherwise?

Look, I don't mean to come across angry or tolling, but I get frustrated when people try to interpret the constitution in their own way. We have 200 years of judicial rulings that have done that. Unless you guys know something I do not (which is, granted, quite possible), in which case tell me WHY you feel they could not do these things...

Other than how you read the law.
 
Tak Ne said:
What happens to him if he doesn't hand over the passphrase? I realise its contempt of court but what is the penalty for that?
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Could be up to indefinite confinement. If you look at Chadwick v. Janecka, the appellant was basically told that he could be held indefinitely (ended up being about nine years if wikipedia is to believed)
 
-Dragon- said:
so if they can get a warrant for your house, safe, or file cabinets, why not your computer?
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Cause nobody likes having their house, safe, or file cabinets taken away. I can't think of any good reason for them to do so, unless this is a murder case. Nobody likes big brother to have that kind of power. Not on phone lines, not at air ports, and not to anything personal. Last I checked a personal computer was very personal.

I personally think that going after peoples personal belongings is a cheap easy way to get the evidence you need. They save money with real detective work, by costing your privacy.
 
kirtar said:
Could be up to indefinite confinement. If you look at Chadwick v. Janecka, the appellant was basically told that he could be held indefinitely (ended up being about nine years if wikipedia is to believed)
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errr make that 14. It was 2009, but 14 years.
 
IRSmurf said:
Let's say a man is on the lam, accused of robbery. Police pull him over for a traffic stop, discover there is a warrant for his arrest, arrest the man and impound his car. Searching the car, police discover a locked box under his driver seat. Do police have permission to open the box? If so, than I believe the accused should be legally required to provide the password. It is no different than a key, except the tax payer has to foot a MUCH higher bill to split open the hard drive's data versus splitting open the locked box.
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Except they can't force you to open the box. They can break it open, but they can't force you to open it yourself.
 
brandinb said:
Try this. Ummm judge.... I forgot the passphrase oops!
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Unless you can convince the judge that it's true, it's not going to fly. With all the trouble that they're going through it's pretty much implied that the defendant knows the passphrase, and are trying to not give it up.
 
fattypants said:
Therein lies the rub. Law is always up for interpretation by the jurists of each generation, since we can't just ask George Mason "What did you guys mean by this?"
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But that's a cop out because the law of today is based on the law of yesterday. Rarely is a law completely overturned, and a law based so concretely in the constitution is even more strongly entrenched.

Look, folks, if you do something wrong, then you lose rights. Not all of them, for sure, but you lose them. And if a judge is willing to issue a court order for the contents of your hard drive, then there is likely a darn good reason for it. You won't see judges wasting their own time issuing orders for no reason, especially recently. Unless you were just a huge jerk to the judge, officers etc, there will have to be some showing of cause/reason for this kind of order.
 
So the Obama administration is now taking the Emporer Palpatine manuver? Stay classy Obama.
 
Modred189 said:
They could. And if you refuse you would be held in contempt and you would go to jail. What makes you think otherwise?

Look, I don't mean to come across angry or tolling, but I get frustrated when people try to interpret the constitution in their own way. We have 200 years of judicial rulings that have done that. Unless you guys know something I do not (which is, granted, quite possible), in which case tell me WHY you feel they could not do these things...

Other than how you read the law.
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Because it does happen. Someone may be a murderer, but hid the body very well such that there isn't enough evidence to convict them. After a large amount of time if the body is found then they are finally convicted and consequences are administered. Else "innocent until proven guilty."

The judge does not have the ability to say: "Tell me where the body is" and the defendant must answer truthfully...

There aren't really a whole lot of cases exactly like this one (or at least that I know of) so hence it should go to Supreme Court so we can set the example for future cases.

AKA: Is something that could be self incriminating, yet hard to get to; necessary evidence to convict someone of a crime?
 
griff30 said:
So the Obama administration is now taking the Emporer Palpatine manuver? Stay classy Obama.
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ROFL. No, the Palp would have force-compelled it out of you.
The O-train steals your babies and holds them ransom. :D
 
Lycidas said:
Because it does happen. Someone may be a murderer, but hid the body very well such that there isn't enough evidence to convict them. After a large amount of time if the body is found then they are finally convicted and consequences are administered. Else "innocent until proven guilty."

The judge does not have the ability to say: "Tell me where the body is" and the defendant must answer truthfully...

There aren't really a whole lot of cases exactly like this one (or at least that I know of) so hence it should go to Supreme Court so we can set the example for future cases.

AKA: Is something that could be self incriminating, yet hard to get to; necessary evidence to convict someone of a crime?
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Again, on the stand != subpoenas and document requests.
 
Modred189 said:
But that's a cop out because the law of today is based on the law of yesterday.
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But it's not a cop out at all. If it were so obvious, this case would not exist. Prosecutors are required to gather the evidence against the defendant. They did. There is nothing further they can take from the defendant, except for what is in her mind.

If this were a murder trial and the prosecutor demanded to know where the bodies were hidden, the court couldn't just hold her in contempt until she produced the corpses.
 
If you can somehow legally be compelled to tell the prosecution how to decrypt your incriminating documents, then that is a travesty of the 5th amendment, and I don't care what precedent has been set otherwise.
 
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