So Much For The Fifth Amendment: Man Jailed For Seven Months For Not Turning Over Password
from the enjoying-your-rights,-citizen? dept
The FBI recently spent more than $1 million for assistance in decrypting a device's contents. It may have overpaid. Alternatives exist, whether it's a $5 wrench or indefinite imprisonment for not helping the government with its prosecution efforts.
A Philadelphia man suspected of possessing child pornography has been in jail for seven months and counting after being found in contempt of a court order demanding that he decrypt two password-protected hard drives.The Fifth Amendment should prevent the government from punishing a person for not testifying against themselves, which is what's being argued by the defendant's representation in its appeal to the Third Circuit. (Although it's actually indirect representation. The government's case is actually against Doe's devices ["United States of America v. Apple MacPro Computer, et al"] and his lawyer is hoping for a stay of the contempt order during the appeal process.)
The suspect, a former Philadelphia Police Department sergeant, has not been charged with any child porn crimes. Instead, he remains indefinitely imprisoned in Philadelphia's Federal Detention Center for refusing to unlock two drives encrypted with Apple's FileVault software in a case that once again highlights the extent to which the authorities are going to crack encrypted devices. The man is to remain jailed "until such time that he fully complies" with the decryption order.
Mr. Doe… has a strong likelihood of success on the second issue: whether compelling the target of a criminal investigation to recall and divulge an encryption passcode transgresses the Fifth Amendment privilege against self-incrimination. Supreme Court precedent already instructs that a suspect may not be compelled to disclose the sequence of numbers that will open a combination lock — clearly auguring the same rule for any compelled disclosure of the sequence of characters constituting an encryption passcode.Doe's rep also argues that the All Writs order obtained by the government has no jurisdiction over Doe or his devices.
Mr. Doe’s first claim is that the district court lacked subject matter jurisdiction. The claim stems from the government’s apparently unprecedented use of an unusual procedural vehicle to attempt to compel a suspect to give evidence in advance of potential criminal charges. Specifically, the government took resort not to a grand jury, but to a magistrate judge pursuant to the All Writs Act, 28 U.S.C. § 1651. (Ex. F at 1).As it stands now, Doe is still being held in contempt of court for refusing to decrypt his devices for investigators. The district court that held him in contempt has refused direct appeal of that order, resulting in the labyrinthine legal strategy of using the government's case against Doe's devices as a vehicle for challenging the lower court's contempt order.
It is black letter law that the All Writs Act never supplies “any federal subject-matter jurisdiction in its own right[.]” Sygenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 31 (2002) (citation omitted). It is equally well-settled that the Act has no application where other provisions of law specifically address the subject matter concerned. Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 40-42 (1985). The compelled production of evidence in advance of criminal charges is specifically addressed by Rules 6 and 17 of the Federal Rules of Criminal Procedure, which authorize the issuance and enforcement of grand jury subpoenas; and by 28 U.S.C. § 1826(a), which specifies the authorized penalties for a witness who refuses without good cause to give the evidence demanded by the grand jury.
Doe has not been charged, yet he's in prison. Backing up the government's assertions for holding him in contempt are two dubious pieces of hearsay. One is from his estranged sister, who claims to have seen child porn on Doe's computer, but can't actually say whether it was located on the devices the government is seeking to have decrypted. The other is from some sort of law enforcement encryption whisperer, who can apparently see things in the scrambled bits.
The government’s second witness was Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office. He testified only that it was his “best guess” child pornography would be found on the hard drives. (Ex. J at 346). According to Tankelewicz’s understanding of the Freenet online network (in which he admits having no training), there were signs on an Apple Mac Pro computer seized with the hard drives of a user accessing or trying to access message boards with names suggestive of child pornography. (Ex. J at 306, 311-312, 339-340). In rather ambiguous testimony, Tankelewicz did not appear to say this meant any image traded over these boards was on the hard drives. (See Ex. J at 303-317, 336-340, 345-350). Instead, he identified a single image he believed there to be a “possibility” was on the drives. (Ex. J at 308-309). As he described it, the image was of “a four or five-year-old girl with her dress lifted up, but the image itself was small so you really couldn’t see what was going on with the image.” (Ex. J at 308).No one wants to see a sex offender walk away from charges, but at this point, Doe hasn't even been officially charged with anything more than contempt. The problem with that charge is it has no end date. He can either stay in jail or comply with the order, even when the order conjures jurisdiction out of nowhere and violates his Fifth Amendment rights. If the government doesn't have enough evidence to pursue a case against Doe, it should cut him loose until it does.
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Filed Under: all writs act, child porn, contempt, encryption, fifth amendment, in rem, jail, password, philadelphia
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Constitution
Is it a culture of "Winning"? Why should they personally care if he walks because of lack of evidence?
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'Justice' US style
Guilt or innocence has nothing to do with it, this is absurd no matter which is the case, and acts as a perfect example of how the legal system has become a system of 'The ends justify the means'.
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H. Beatty Chadwick
How did they get away with that?
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Re: H. Beatty Chadwick
In this case, there should be a MUCH shorter half-life. I can barely remember a password I don't type in daily, if I haven't used it for a month.
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Larger issue here
2. Report that adversary has child porn
3. Enjoy watching your adversary rot in jail for not producing a pass-code he does not have.
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Re: Larger issue here
0) Make sure that the device has the strongest encryption on it you can get. And make sure it'll wipe all the data on itself after too many failed password attempts, so that the cops can't crack it on their own.
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Re: Re: Larger issue here
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Just a minute...
Silly argument yes -- but no sillier than this abuse of the All Writs Act.
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Re: Just a minute...
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Re: Just a minute...
What the hell is this? A computer in contempt of court?! Are we all insane that this sentence is even written outside of some dystopian comedy?
And then the owner is the one that gets jail time for it! You couldn't come up with this stuff if you tried!
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Re: Re: Just a minute...
"He testified only that it was his “best guess” child pornography would be found on the hard drives."
This is just awesome!
"As he described it, the image was of “a four or five-year-old girl with her dress lifted up, but the image itself was small so you really couldn’t see what was going on with the image.”"
"It vexed me quite a bit and I spent a few long hours trying to see what was under the girl's dress" he then added.
That's where this is leading, right?
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Sex Offender?
Oh yeah. Justice.
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Re: Sex Offender?
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Like with Apple, he hasn't been charged with anything, but at this point is considered a third party to the case. The case is against his computer and peripherals for being accused of harboring child porn.
So just like the courts using the AWA to compel Apple to unlock a phone, they're using the AWA here to compel the John Doe to unlock an external drive.
Of course, once it's unlocked, they can investigate it and may find that the contents incriminate the Doe in CP possession, as he possessed the encrypted drives.
The question does arise though: since the case is against his computer and external drives, and not against JD, doesn't that mean that they have the hardware in custody? Which means the COURT is potentially in possession of CP, not the JD? Or is it all random data until he gives them the password, at which point the court is in possession of CP? And if that's the case, then don't they have to prove that the JD is the one who last decrypted the drives? Otherwise, following the same logic, HE wasn't in possession of CP until decryption occurred.
I know that's not how the courts will see it, but they see many things these days in an odd light, so I should be allowed to as well.
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I know that prosecutors CAN file charges against John/Jane Does for stuff like sexual assault/rape, and replace the Doe with the actual person once they find out who it is. I think they normally only do this though when they feel they're close to solving the case, but are running against the clock to file charges.
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"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"
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It might not anyway, given the subject matter.
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I propose this new amendment include:
"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;"
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the pirate code
So the reality of the the state (in all states) is the force of the gun not of law
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All nice and legal.
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The fifth amendment
The very short version is that while the Fifth Amendment is clearly implicated, the Fifth Amendment has several nuances and exceptions. One of those exceptions is the Foregone Conclusion Doctrine. While not quite a clear cut case, this case seems to fit within that. Law Enforcement has evidence that these are his drives, that he is capable of decrypting them, and they have some idea of what at least some of the contents they will find are. Courts have upheld the use of the foregone conclusion doctrine several times, and I argue in my law review article that it is proper to use that doctrine so long as they can actually meet its requirements.
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Re: The fifth amendment
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Re: The fifth amendment
Was it the estranged sister, the psychic hotline or the dowsing rod that made the contents a forgone conclusion?
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Re: The fifth amendment
If you already had it you wouldn't need to 'ask' someone else to give it to you, and if their doing so provides you with evidence you don't already have, evidence that's then used against them the Fifth should absolutely apply, as you're 'asking' them to provide incriminating evidence against themself.
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Re: The fifth amendment
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"Backing up the government's assertions for holding him in contempt are two dubious pieces of hearsay. One is from his estranged sister, who claims to have seen child porn on Doe's computer, but can't actually say whether it was located on the devices the government is seeking to have decrypted."
AND
"The government’s second witness was Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office. He testified only that it was his “best guess” child pornography would be found on the hard drives. (Ex. J at 346). According to Tankelewicz’s understanding of the Freenet online network (in which he admits having no training), there were signs on an Apple Mac Pro computer seized with the hard drives of a user accessing or trying to access message boards with names suggestive of child pornography. (Ex. J at 306, 311-312, 339-340). In rather ambiguous testimony, Tankelewicz did not appear to say this meant any image traded over these boards was on the hard drives. (See Ex. J at 303-317, 336-340, 345-350). Instead, he identified a single image he believed there to be a “possibility” was on the drives. (Ex. J at 308-309). As he described it, the image was of “a four or five-year-old girl with her dress lifted up, but the image itself was small so you really couldn’t see what was going on with the image.” (Ex. J at 308)."
Hearsay and "best guesses." This is a fishing expedition. They have no idea what is on there.
I bet most porn collectors have at least 1 pic that is questionable. All it takes is one and I know I wouldn't give them carte blanche access to find that 1 pic to fry me on. It is blackmail.
In 10 years we will be just like China, Russia, etc.
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"ten years"
Our legal system is at this point a smokescreen obfuscating a totalitarian system enforced by bandits and thugs. They only do us the disservice of finding an excuse for waiving our rights, when they should just call our arrest and imprisonment extrajudicial.
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Re: "ten years"
Russia doesn't execute people anymore.
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Re: The fifth amendment
The thing is, for it to be a Foregone Conclusion, they wouldn't NEED him to decrypt the drives in order to charge him or even convict him of possessing child pornography.
But they don't have anything beyond hearsay and a hunch that there is anything illegal on those drives.
If he decrypts them and there is something illegal on them, then he will have incriminated himself. Being compelled to incriminate himself would cause the resulting evidence to be tainted, and it would be inadmissible.
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Re: The fifth amendment
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Re: The fifth amendment
Let's say that the police have a copy of the ballistics for one of an officers personal guns (maybe it was used in a justified shooting in the past). Now let's say that a person is murdered and the ballistics point to that particular gun. Plus they have a witness who claims to have seen that officer commit the murder. When they demand the gun from the officer, he claims he can't find it and that it must have been stolen.
Can they use the Foregone Conclusion Doctrine to lock him up until he produces the murder weapon?
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"What's your password?"
"I don't remember."
Unless you've been Gitmoed, "I don't remember" is the obvious answer.
Repeat it until you believe it yourself.
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Re:
"I refuse to give you the password or even confirm or deny that I know it." = Contempt of court charge, sit in a cell until you cave.
"I don't remember the password." = Contempt of court charge, sit in a cell until you remember.
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And in response to the claim that he doesn't remember, he's been jailed for contempt of court - presumably because the judge doesn't believe him.
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Chances are very likely that this ex-police sergeant has child pornography and that the judge found him in "contempt of court". If he has grounds for appealing the order, then the appellate courts will rule the court order as violating the defendant's rights.
The ex-police sergeant may remain in prison until he follows the court order. What Tim Cushing fails to understand is that the defendant handing over his passcodes to the hard drives does not violate his constitutional rights and that the probative value far outweighs the declaration against penal interests. In order for the "state" to do its job properly, it needs to gather evidence. The defendant was ordered by the courts to hand over the passcodes to his hard-drives, he refused. So now he's in contempt of court.
No appellate court will agree to hear this. If they do, they aren't going to find in favor of the defendant because his constitutional rights were not violated.
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I can't wait for the savings to trickle down!
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"Give us the evidence we need to convict you or rot in a cell until you do!"
The desire of the prosecution to secure a conviction does not trump the protections against self-incrimination held by the accused, and if you want to claim that forcing someone to hand over a password or otherwise decrypt a device/account isn't self incrimination, then the prosecution need only provide a legally binding offer of immunity regarding anything found on the devices, or the fact that the accused could unlock it to the defendant to make it clear that they have no interest in using the above against the accused, which means compelling them to hand over the password/decrypt the device isn't an act of self-incrimination.
Now then, do you think any of the prosecutors would offer such a deal in cases like these?
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For any merchant marines that might be reading this: 'You're already fucked, because we plan to fuck you over. You might as well just give the fuck up.'
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The fifth amendment is very definitely implicated here.
By requiring the man to provide the pass code, the court is requiring him to act in a manner which demonstrates plainly and for all to see, that he possessed the devices; knew the pass codes; and saved specific files, of which at least one was arguably child pornography on the devices.
The only contrary to that that I can think of would be the court is requiring a physical act, not actual speech. But, I suspect a lawyer well-versed in case law on this point would tell you that's a moot issue.
The appeal brief is absolutely correct. Requiring the pass code is identical to requiring the combination to a safe.
The circuit court had no business issuing that order, and for any appellate court to decline the appeal or rule in favor of the court is a travesty.
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Re: Computer Search
The Fifth Amendment is only one of the issues here. I learned as a rookie cop that a suspect is not required to cooperate actively in a warrant search other than refraining from obstructing officers.
Even a consensual search can be challenged on the grounds of implied or overt coercion.
The warrant IMO is flimsy at best and criminally fabricated at worst.
And of course there's that inconvenient 'speedy trial' thing...
This is an unconstitutional outrage that may well result in major damages.
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Foregone conclusion
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They're free to gather away! They have the hard drives. Is it not worth it for them to have the NSA try and crack the encryption? If not, is the cost to keep him in jail a better way to spend taxpayer dollars? Remember - he hasn't been charged, tried, or convicted of anything.
If this is such a slam dunk case, then why not CHARGE him with the crime? Not for nothing, everyone knows that if it went to any kind of trial as-is, he'd walk.
It's just an end-run around the 5th amendment, and if that doesn't scare you, it really should.
The defendant was ordered by the courts to hand over the passcodes to his hard-drives, he refused. So now he's in contempt of court.
He also has a right to remain silent. Or is that somehow also not applicable anymore?
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Law Enforcement Is Broke
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"How have we sunk so low?"
The Bill of Rights was enumerated from experience with English courts and Church courts before them. Really, it comes down to humans not being rational creature unless they try really hard.
Any human institution with power will eventually resort to perversion of the rules to discharge its strength. It's not a matter of if, but when.
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First, this wasn't some overzealous cop or prosecutor demanding this, the judge ordered the defendant to hand over the passcodes. When a judge tells you to do something, you either follow his order or you get thrown in jail until you follow the court order handed down by the judge.
Second, I simply cannot fathom how many people here are ignorant how the law works. This isn't the same as the Apple vs FBI crap. If the San Bernando terrorists had survived, they would have been ordered to turn over their passcodes as well.
This is the same as when you're ordered to provide a voice sample to police, a blood test if you're suspected of driving under the influence or any other such requests. Providing your passwords, codes or whatever so that the police can investigate is not violating your constitutional rights.
Boy, I love the sheer stupidity and ignorance about the law being displayed here by so-called "street lawyers". LOLS
If this ex-sergeant expects to get out of jail, he's going to have to provide the passcodes to his hard-drives. Simply put, he needs to comply with the court order ... it's simply not an option.
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And I never thought I'd see someone so rabid to throw someone in jail WHO HASN'T BEEN CHARGED WITH A CRIME.
Again, if it's such a slam dunk case, why not charge him? Perhaps since you're not a "street lawyer" like the rest of us, you could shed some light on why charges haven't been filed, since he's already guilty and all.
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There's your problem right there.
Presumption of guilt much? Maybe you should bother to look up from your meth-lab and consider the actual evidence against this guy.
Oh, right, there isn't any.
Here in the US we once believed that you couldnt just decide in advance that someone was a bad guy and then toss him in a cell until you find cause.
Now we do so anyway.
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No one is defending the accused, this is a discussion about process and procedure. Its not OK to change process/procedure because of the crime being accused.
You seem to think its ok to compel someone to testify against themselves, some of us feel different and are not swayed by your emotions toward the particular crime involved.
Have you considered that he does not know the codes to the drives? Bet you might feel different if it were you in jail for not knowing the codes to some drives.
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You know what I really can't defend?
Law enforcement folks who are too lazy to do their own fucking work.
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Yeah, go figure, people are willing to defend even accused scum if that's what it takes to defend the rights of everyone, including said accused scum. The test of whether or not someone actually values something is whether or not they're willing to defend it's use by someone they disagree with or are even disgusted by.
Someone who claims to value free speech except when it's used by someone they don't agree with, or to say something they don't like doesn't actually value free speech.
Likewise someone who believes that everyone deserves fair and equal treatment under the law except when the defendant is being accused of a heinous crime doesn't actually believe that everyone deserves fair and equal treatment under the law.
First, this wasn't some overzealous cop or prosecutor demanding this, the judge ordered the defendant to hand over the passcodes. When a judge tells you to do something, you either follow his order or you get thrown in jail until you follow the court order handed down by the judge.
Doesn't matter if it's a cop, prosecutor, or the freakin' US President, if the order isn't one that people see as just, and the punishment isn't seen as just, then people are going to object to it. 'It's the law' isn't an excuse either, some pretty nasty stuff has been legal over the years, never made any of it right.
In this case, assuming the material that the prosecution thinks might be on the devices is the judge is basically telling the defendant 'Give the prosecution the evidence they need to convict you', which flies right in the face of the protection against self-incrimination provided by the fifth.
Handing over a password or decrypting a device is not 'allowing an investigation', it's handing over potentially self-incriminating evidence(if nothing else it's solid, court-admissible evidence that the accused has access to the device/account in question, linking them to the contents of said device/account) to the investigators/prosecutors, and as such is not something that should be seen as acceptable by judges or prosecutors. Punishing someone for refusing to hand over self-incriminating evidence to the prosecution/investigators makes the protection against self-incrimination completely hollow, utterly useless as an actual protection.
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One of the tricks played in the story is to move the bar for the standard of a warrant. Tim tries to make it "beyond a reasonable doubt" as he tries to portray the police testimony as weak, yet the real standard is probable cause. In this case, if you replaced "computer hard drives" with "locked box under bed" nobody here would even have the discussion, they would want the evidence seized and accessed, and the perv tossed in jail.
In simple terms, there is more than enough probable cause here to get a warrant, and failure to comply with that warrant puts the guy in contempt of court. Contempt of court is a very open ended thing, and yes you can remain locked up until you comply or until the warrant is otherwise satisfied.
"Handing over a password or decrypting a device is not 'allowing an investigation', it's handing over potentially self-incriminating evidence("
It would be no different from producing the combination to a safe or the key to access a lockbox that contains incriminating evidence. If you consider the hard drives to be no different from a locked box, you can understand how this guy ends up locked up for refusing the courts valid order - and that order is entirely just.
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Based on...??? The hateful sister or the techromancer encryption expert? Or do you just have a dog that sniffs out child porn and illegal thoughts?
If this case presents the bar by which a civilian to decrypt a drive, then any civilian can be forced to decrypt a drive.
And in that case, I can arrange a drive in your possession to which you have no password, and I can arrange that it allegedly has child porn and state secrets, and that you know the password and just ain't talkin'. And I can do that to any no-name shlub I want.
Enjoy your stay in prison.
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Yup, and can you make me hang around CP sites and download stuff too? Come on. Are you going to show me buying the drive, having it in my possession, and using it?
Don't be silly.
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One can only hope that you are never placed in this situation. But as others have many time previously shown, it is quite easy for you to be incriminated and labelled as any kind of felon without you ever being found guilty.
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Or are you saying that you would demand to be treated differently, which is way too typical.
If they can incriminate him with nothing, they can incriminate you with nothing, and the only reason it hasn't happened is because they don't know yet what they want from you.
As soon as they do, you'll be in jail too, and they'll have it.
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First off, remember that you are talking probable cause for a warrant and not "beyond a reasonable doubt" required for conviction. The bar is quite low, and that could include what would be considered hearsay or evidence that might not by itself be enough to justify a conviction.
In any case like this, you have to go back to understand how the end up at this guys door rather than somewhere else. There are any number of items that could lead to this, any or all of those points together can reach the level of probable cause. It's not enough for an arrest, but it is enough to execute a search warrant.
The guy isn't in jail for child porn. He's in jail for failure to follow valid warrant, essentially contempt of court. His fifth amendment rights here are not more at issue than for someone who fails to provide the combination to a very, very, very strong wall safe. The existence of the hard drivers, combined with the other evidence that lead to the warrant means that there is probable cause to search those hard drives. Nobody can deny that the drives exist, and his insistence that he has magically forgotten the key seems to suggest more of an obstructionist move than a memory lapse.
It's easy to scream "fifth amendment" and try to grant computer equipment some special status not attributed to local file cabinets, safes, storage lockers, or safety deposit boxes. The reality is that except for the complexity of the key system, they are all in fact the same.
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You are a foolish man to NOT strive to protect the constitution and its application to all. You have such a treasure in this constitution, yet you treat it as being essentially worthless. Most nations have no such treasure and the people therein live at the mercy of the respective government.
When you finally learn the value of your constitution it will be too late for you personally as it will have gone the way of all good things not protected by worthy men and women. Foolish child, know this, your nation WILL fall and fall far because of people like yourself who have no care for the treasures that are yours. There is a word that describes one such as you and that is Quisling. Understand what that signifies and maybe, just maybe, you will take action to protect what you have.
I live in a nation that has no such protections, but we at least have many judges that are wise and do the best to protect under the principle of "innocent until proven guilty."
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It's not my constitution, thanks.
Aside from a good rant, you didn't really address the point: how does a "locked" hard drive differ (in legal terms) from a locked box or a locked safe?
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Are you saying you're not an American citizen or you are an American citizen and you just declaim the constitution or something else?
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From the article and attached Motion to Stay:You're arguing against yourself on this one.
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"clearly auguring the same rule for any compelled disclosure of the
sequence of characters constituting an encryption passcode. See United States v.
Hubbell, 530 U.S. 27, 43 (2000); Doe v. United States, 487 U.S. 201, 210 n.9
(1988); see also id. at 219 (Stevens, J., dissenting)."
That isn't FACT, that is a lawyer's plea to the judge.
That a door or a safe could be forced open in a reasonable time (minutes) means that forcing the issue is not the best (or perhaps only) solution.
The argument against forced decryption is very weak. Without a method to compel disclosure in a case where there is enough evidence to suggest a hard drive or device may contain evidence of the crime creates too broad a protection for the accused. It would allow everyone to use single character passwords for zip files (as an example) and suddenly make them magically exempt from the law.
As we move to using digital devices more and more in every day life, and more and more communication is done vie text message, email, social media, giving a pass to anything encrypted in any manner is just steps towards creating a Utopia for criminals, who will encrypt their conversations, encrypt the hard drives that save the data of those discussions, and thus never have to be concerned that any of their discussions or chats will be used against them.
You have to consider the implications before just giving it a pass. SCOTUS gave a pass for things that could be easily worked around, but encryption is not so easily dealt with. Our ability to encode is higher than out ability to decode.
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Since there are many methods available to brute force such, again you are wrong.
Basic premise is wrong for starters, how many criminals are actually bright enough to do this? Secondly, we use such methods to protect ourselves from criminals (of all stripes, including governmental ones).
This morning I was having a discussion with a friend about protecting people whose actions are moral but under the prevailing laws are considered criminal. The use of encryption is one way to protect such from their totalitarian regimes.
If the presumption of "innocence until proven guilty" is used, then yes, it is a must to give this a pass. If the presumption of "guilty until proven innocent" is used, then it won't be given a pass.
What would you (as in you Whatever) want to be the standard, "innocent until proven guilty" or "guilty until proven innocent". The only requirement is for you to be placed in the shoes of any person being charged with any crime. Irrespective of your actual innocence or guilt, which would you rather be allocated, guilty by accusation or innocent until proven guilty?
Obviously, from your own statements, it is the latter, but then we already know that you are guilty of some heinous crimes, by your own admission. It is just a pity that they cannot prosecute your because of your use of a pseudonym. If you stand by your statements, please give us your actual name, date of birth, current address, current occupation, names and date of birth of both your parents, so that we can arrange for the appropriate accusations to be made to the law enforcement authorities so that your can be arrested and charged. we don't want to get the wrong person, now would we?
So please give the above details, so we can see the proper outcome.
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Let's address this, if the law enforcement people have the legal capability of breaking into either then do so. That does not require the owner of said locked device to have given up the key to said locked device. Irrespective of what the "law" may say or what the court may request, if the principle is "innocent until proven guilty", then it is the responsibility of the prosecution to find the legal means of opening said locked container, not for the owner to provide such means. He (by the principle of "innocent until proven guilty") should have to do nothing until verifiable evidence has been presented. The judge should be protecting his innocence at all times.
If you think otherwise, then you simply accede to the view of "guilty until proven innocent". It other words, you agree to the view that you (Whatever) are already guilty of some crime that needs to put you (Whatever) into prison or executed according to the laws in place in your place of residence.
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They can hire someone to break into a box or safe. As far as I know, they can't break in to a locked hard drive.
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Me and two other people, who I swear I don't know, saw you shoot that guy last night. You can either hand over the gun you used to the police or rot in jail on a contempt charge until you do.
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But let's pretend you did not say what you said: you used TOR for downloading, the drive was a present and the possession is obvious as it has been found in your house.
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Sorry, you are just reaching way to far to try to make a point, and failing.
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The hard drive is mailed to you with a note saying "Here's your drive back. I greatly enjoyed the pictures and videos you sent. I have filled it up with similar material. The password is as always. Enjoy!"
Then phone in a tip that you've been trading CP through the mail.
I know, I know... You'll just tell the feds that the drive was sent to you anonymously and that you have no idea where it came from. Yup, I hear they're really understanding about stuff like that. They'll probably have a good laugh about it and tell you that it happens all the time. They'll probably even let you keep the drive.
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The Techdirt community is defending a known and convicted child porn trafficker.
The Techdirt community is defending every citizen of the United States who possesses 5th amendment rights and may one day be falsely accused of a crime they didn't commit.
By securing the 5th amendment rights of an actual dirtbag child porn trafficker, we are securing those rights for ourselves.
If he is guilty, the government should find evidence and use it in court to have him found guilty by a jury of his peers.
There's a reason we have the concept of innocent until proven guilty. You could easily be accused by people of something terrible and the police could take those false statements against you and release them to the media and the Techdirt community could be reading about how you've been accused of terrible crimes and some people like you could be shouting for your head because they assume what they read is true and don't actually believe in letting the justice system work as it was intended.
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The Techdirt community ISN'T defending a known and convicted child porn trafficker.
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That's because, as I said above, you've lost the ability to think rationally about anything CP-related. Nothing in the article defends CP in any way, shape or form. Feel free to point out specifics if you think I'm wrong.
It is vital to vigorously protect the rights and laws put in place to protect the people from governmental or law enforcement overreach. They were put there for good reason, usually as a result of decades or centuries of suffering by ALL people, not just people you happen to despise. If you choose to ignore these protections for bad people, you effectively give permission to ignore them for everyone else too.
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And you still haven't.
Constitutional Rights. Due Motherfucking Process.
The Rule Of Law.
These are the things being defended.
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Re: [sane as providing voice sample]
Not quite. A voice sample is not testimentary, though if the sample required was you saying ``I did it and am guilty'' there might be an argument. The blood sample is under the somewhat dubious ``implied consent'' doctrine.
On the other hand, giving the decryption key is testimentary. It provides a statement from you that
Normally self incrimination is not required. Obviously in the state wherein our defendant finds himself, the law is different. Caveat: I am not licensed in his state, probably cannot spell its name correctly, and may be insufficiently familiar with the case law applying the US Fifth Amendment to Federal prosecutors and to the northern states through the Fourteenth.
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why can't the cops just brute-force the encryption like they'd brute-force a physical safe?
ALL of the tools to do that are freely available.
i do not care if the heat death of the universe would probably happen before they crack it, but who knows.. they might get lucky
and like other posters have said, all you need to do now to someone you dislike is plant an encrypted device on them and make a false accusation
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i tell the police that little johnny has 10 kilo's of coke. a search warrent is properly issued and little johnny and all his things are searched, turning up nothing.
judge orders little johnny to tell the police where the coke is.
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Read the 5th, and get back to me...
In layman's terms, you cannot be compelled to utter a single word that will ever be heard in a courtroom.
What DOESN'T it say? It doesn't say that you cannot be forced to do something that might eventually lead to somebody else testifying against you.
The password itself would be inadmissible, but it is certainly plausible to argue that that protection does not extend to what the password is protecting. Certainly the Supreme Court has yet to rule on the issue (contrary to the statements in the article... the whole "Combination to a safe cannot be compelled" thing has been mentioned in SCOTUS dicta (most notably in a dissent), but not actually been part of a majority opinion.)
Different Federal courts have ruled differently on the issue, so eventually SCOTUS will have to settle this, but that has not yet happened.
Now, arguing you have forgotten the password would certainly be a defense, but it may or may not be a compelling one, depending on circumstances.
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Getting back to you...
Providing a password requires some method of communication by the suspect, no? Since we want to get literal as far as interpretation goes, does he NOT have a right to remain silent?
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Before the password is provided the prosecution/investigators have a device/account that even if they're pretty sure belongs to the accused they may or may not be able to demonstrate that the accused has access to the contents(and can therefor be held responsible for), and they don't have the contents of the device/account to use as evidence against the accused. After the password is provided though they have both.
As such compelling someone to hand over a password should be seen and treated as forcing someone to provide self-incriminating evidence against themself, and barred on those grounds.
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No different from provide a key for a locked room, storage unit, or safety deposit box, or providing the combination to a safe.
None of those would a 5th amendment violation. Why would this be? Is there some sort of digital magic here?
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You seem to think you're making a point - you don't have to provide a key to a safety deposit box, combination to a safe, or any assistance whatsoever.
So if they are no different (your words), then him being jailed is a violation of his rights.
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Without digging through cases the wiki entry seems to imply that while the US SC hasn't taken up the issue directly, they indicated at the time that suspects cannot be compelled to provide information such as passwords as such information is located within the mind, rather than as a physical object. Lower courts have gone both ways, some claiming that forcing someone to provide a password or decrypt a device isn't self-incriminatory, others that it is, so it's hardly a settled matter.
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Anything less, means that the principle involved is "guilty until proven innocent". Unfortunately, many judges are fools or corrupt and do not have the wisdom or backbone to use the higher standard.
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I bring home computers and hard drives that I find during bulk trash pickup. If one of them happens to be encrypted, is it right that I be thrown in jail indefinitely because I don't know the password to it?
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I've forgotten many passwords in my life. A couple years ago I stumbled across a password protected archive of some personal stuff that I had written many years ago. I have no idea now what I used for a password.
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Abandon hope all who live here
With gag orders and secret courts, etc, and locking down entire cities while searching for two clowns of their own creation, they make the Gestapo look tame by comparison.
Although treason, they call it reason.
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Seriously? Did you fucking just say that? The police and prosecutor are investigating the allegations into whether or not this ex-sergeant has child porn. He has his hard drives encrypted. The prosecutor applied for warrants to search suspects computer and suspect refuses to turn over the access codes to his hard drive.
Uh, just what the fuck are you confused about? The police and the prosecutor are trying to investigate by searching his hard drive but the suspect won't provide the access codes to his hard drive.
When a judge order you to do something, under court order, you are required by law to comply. If the order isn't legal, that's something that your attorney needs to tell the court that it intends to file an appeal, challenging it.
The idiot child porn ex police sergeant was in jail for several months before his attorney decided to appeal the matter. If he has nothing to hide, then he would decrypt the hard drives. Additionally, it's been erroneously reported that the "All Writs Act" is keeping him in jail. This is incorrect. He's being held in jail because he's found to be in contempt of court, which is a serious charge.
I just don't see the appellate court ruling in favor of the ex police sergeant and that he will either have to comply with the court order or remain in jail until he does.
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Nothing to Hide
But you have things to hide, even if you believe you have never committed a crime, there is enough in your data to convict and jail you for the rest of your pathetic life. Be glad that no official has need to get you out of the way, or add you to his resume of imprisoned baddies. You are already a criminal.
He's being held in jail because he's found to be in contempt of court, which is a serious charge.
And this incident of contempt weakens the veracity of all other contempt charges. US history is already lousy with unfair rulings by justices too corrupt or incompetent to do their job. This is yet another example of how the authority of US courts is not in a commitment to fairness but down the barrel of a loaded gun.
Id Est with no more legitimacy than any other tyranny or terrorist.
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So no, "If the order isn't legal, that's something that your attorney needs to tell the court that it intends to file an appeal, challenging it" can't exactly happen here as you imagine it. They need to take this circuitous route.
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Using the process as a threat, disincentive or punishment.
See, once they got a warrant they'd SWAT the place, and the policy then is to shoot any dog.
So yeah. If you want your dog to live, you better play nice.
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Blorb.
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It's pretty clear from your attitude that you just want him in jail for the CP he hasn't even been changed for, not contempt of court. At least be honest about that.
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The question you should be asking is did you fucking just read that? To which the answer would be yes - I guess I don't understand the point of asking if I said something, given that you copied it on your post - it's obvious I did fucking just say that. Are you dense or something?
The police and prosecutor are investigating the allegations into whether or not this ex-sergeant has child porn.
Right - and he hasn't been charged with anything. Just like I fucking said, and you fucking read, and then copied in your post, and asked me if I said it.
Uh, just what the fuck are you confused about? The police and the prosecutor are trying to investigate by searching his hard drive but the suspect won't provide the access codes to his hard drive.
Right again - and once again there are NO CHARGES. So it would appear that you are the one that's fucking confused, despite reading my fucking post.
If the order isn't legal, that's something that your attorney needs to tell the court that it intends to file an appeal, challenging it.
Which is what's happening...and he HASN'T still been charged with a crime...again, just like I fucking said.
I certainly hope this helped.
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So share your main e-mail password with us. We promise, we will just have a peek.
Do you still have nothing to hide?
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Got nothing to hide, right?
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Since when is a suspect required to help the police find evidence to convict him with?
And what happens when a person who is truly innocent is put in the same position?
Hypothetical situation;
Person finds an encrypted hard drive in the trash and brings it home. They plan to reformat and use it, but haven't yet gotten around to it. Vindictive ex-GF/wife accuses him of having child porn. Cops tear apart the house, find the encrypted drive and demand that he give them the password. He doesn't have it, but he has no proof that he only found the drive. Judge orders him held in contempt until he provides the password.
In such a case, how does the guy prove he doesn't know the password? Also, how are these not cases of a person being judged guilty until proven innocent? The judge is effective telling them "If you want to get out of jail, you must decrypt the hard drive and prove that there's nothing illegal on it. Until then, you can rot."
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You Still Don't Understand!
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Let me be the firest to say...
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Oh wait, on second thought, don't think of the children.
On a more serious not, what are you, some kind of pedo perv?
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So hold on a second. Am I reading this right? If this picture is so small that you can't see whats going on in the image, does this mean the man is going to jail for a thumbnail pic? Something you're computer caches from websites all of the time?
Imagine putting up a bad banner ad with CP (or something remotely looking like CP) on it, and getting it onto a popular website. Now everyone who visits said site has that picture cached. And with Burr & Feinstein's now terrible law idea, it would be illegal to delete said picture (due to how poorly said law is written). Congratulations, now everyone is stuck with CP on their PC?
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Obvious
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Shame most do not seem to care that their government ignores their basic rights until it happens to them.
Going to take a massive 1 time attack on civil liberties for most of the apathetic citizens to wake up to this threat imo.
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I think I've finally figured out this administration
http://memory-beta.wikia.com/wiki/Ferengi_Rules_of_Acquisition
So, all we gotta do is grab their ears and twist.
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Re: I think I've finally figured out this administration
'Cardassian society had the most rigid and, to the Federation, incomprehensible of all legal systems. Every suspect was irrefutably deemed guilty before even appearing in court, their sentence already spelled out – almost always either death or imprisonment in a harsh labor camp. The criminal was given a Conservator, equivalent to a public defender, except that the Conservator was not supposed to win but to prepare the criminal for a moving confession of guilt on the floor of the court. The accused was also permitted an advocate, the Nestor, to advise them during the trial. The Chief Archon, or judge, of the court played to a televised audience, their duty not to judge the prisoner's innocence or guilt, but rather to give an emphatic display of the futility of crime on Cardassia and reinforce the public's trust in the judicial system. Charges against the accused were announced at the commencement of the trial itself, the execution date was set in advance, and only the offender's spouse as well as the court-assigned nestor and counsel could attend the trial.'
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Warrants can't force speech
If we go any other way, possession of an unformatted hard drive would become a crime on the grounds that it could contain CP. This results in a highly leading question of, "where did you hide the body?"
In both situations your asking the defendant to give evidence instead of being a passive observer to the search.
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Heh. A nuanced counterargument.
What makes you think you should have any rights until you tell us?
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And now the AI has standing...
This filing seems to give an electronic device "standing".
Wonder if an AI could also use it to compel a human to assist it in any different type of lawsuit.....
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For all you know, the drive for which he has not given a password may have a password he doesn't know. It may well contain information that is highly confidential that will cause great harm to others if revealed (which it would be once LE got their hands on to it) and he won't on principle give up such password. Or he may simply be standing on his constitutional right to be considered "innocent until proven guilty" no matter what the circumstances he finds himself in.
Since none of us actually knows, we should, under the presumption of "innocent until proven guilty", be considering him innocent.
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Because he doesn't remember it.
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Life in prison for forgetting a password?
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Response to: Anonymous Coward on May 5th, 2016 @ 11:31pm
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