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Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 9:20 am

http://technolog.msnbc.msn.com/_news...-to-give-up-password-to-hard-drive

Fair-use excerpt:

A federal judge has ruled that a Colorado woman, charged in a mortgage scam case, must turn over the password needed to decrypt her hard drive so that police can view the files on it.

Ramona Fricosu was given until Feb. 21 to comply with the order by U.S. District Court Judge Robert Blackburn. The judge said Fricosu's defense — the Fifth Amendment's right against self-incrimination — did not apply in the case, in which she is charged with bank fraud, wire fraud and money laundering.



Do you agree with the judge's ruling, or not? Do you see a Fifth Amendment issue here?

I can see both sides to the argument, however once all is said and done her password is part of the contents of her mind. If the encryption could be broken by a physical key, the court's order wouldn't be an issue. But since the encryption can only be unlocked by using the contents of her mind, I'd imagine that compulsion would be unconstitutional.

[Edited 2012-01-25 01:22:13]
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ltbewr
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 9:32 am

Probably yes. Current law as to discovery in criminal and civil matters does require one to turn over all documents including in electronic form which would include her computer. I would bet that the SCOTUS would uphold this judge's decision unanimously.

If all her financial records were on paper and she had them in her possession, she would have to give them up or face contempt of court and go to jail for a while until she gave up or a grand jury term ran out. If she had a safe with a combination lock requiring number and pattern of turning the wheel to unlock, it would probably have to be given. Police all the time get into computers and search without a password to obtain info on their hard drives to arrest and prosecute cases (like with child porn).
 
NorthstarBoy
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 10:34 am

Lbtewr-Pardon my ignrorance, but I thought Discovery was only a one way street, the prosecution has to give the defense everything it has but the defense isn't compelled to give the prosecution anything. I thought i remembered Johnny Cochrane saying something to the prosecution during the OJ Simpson trial like "Sorry, you can't look inside my briefcase." I assumed that was a reference to the prosecution not having a right of discovery.

I can't help but wonder, if she were to give the password to her defense attorney, could the defense attorney then refuse to divulge it to the court on the grounds of attorney client privilege? Or could said defense attorney propose to the judge that said laptop be examined by an independent expert who could then testify to the judge as to whether they believe any of the documents on the laptop might be considered incriminating, in which case they're protected by the fifth amendment.

Anyway we look at it, the question of whether the contents of an electronic device fall under fifth amendment protection might be an interesting one for the supreme court to consider.
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flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 11:36 am

Many people commented on this as being either a Fourth or a Fifth Amendment issue.

To be a 4th Amendment issue, the police needed to have a search and seizure warrant for the laptops content. Such a warrant must be specific - but until the file (or harddisk) is decrypted, the police can't know what they are searching for. So it may very well be a case of "fishing for evidence".

If it is a 5th Amendment issue, it is relevant whether giving the password - or producing a decrypted version of the file (or harddisk) would be self-incriminating. She would have to prove that it is self-incriminating. Without releasing the password or the decrypted file, only she can tell.

Quoting ltbewr (Reply 1):
If all her financial records were on paper and she had them in her possession, she would have to give them up or face contempt of court and go to jail for a while until she gave up or a grand jury term ran out.

The huge difference is that you can order somebody to release physical evidence. But short of torturing the person, you can not force anybody to give evidence from his or her own mind.

It's an interesting question whether you could be punished for destroying evidence if you encrypt data that incriminates yourself... 
Quoting NorthstarBoy (Reply 2):
I can't help but wonder, if she were to give the password to her defense attorney, could the defense attorney then refuse to divulge it to the court on the grounds of attorney client privilege?

I don't know U.S. legalese that good, but I thought that only witnesses to a crime had a duty to give testimony. If I would receive her password, I would refuse testimony on the grounds that I haven't witnessed any wrongdoing.

It's a really interesting case. I wonder how it will turn out. I hope that the SCOTUS will bolster 4th and 5th amendment rights and discharge her.


David
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PanHAM
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 12:37 pm

I am surprised that in the US people have to cooperate with the justice to incrimnate themselves.

In Germany, you can even lie to a judge, to the state attorney and the police anyhow. THEY have to prove you are guilty, you have the right not to incriminate yourselve. Even spouses and children cannot be forced.
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StarAC17
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 1:07 pm

This sounds incredibly unconstitutional, c'mon DA's hire anonymous to hack the HD at least.

What is the penalty for telling the judge to get stuffed (contempt of court I think) vs. the penalty for actually admitting to a fraud? If they can't prove guilt with the available evidence then tough on them they are trying a case they have no business trying the case.

This is almost like demanding (If we could do this) to hook up OJ's brain to a memory scanner to show his memory of where he was at the time when said people were killed.

Quoting flyingturtle (Reply 3):
To be a 4th Amendment issue, the police needed to have a search and seizure warrant for the laptops content. Such a warrant must be specific - but until the file (or harddisk) is decrypted, the police can't know what they are searching for. So it may very well be a case of "fishing for evidence".

It sounds like that, they assume the evidence is there but don't know what they are looking for. She should have to turn over the computer and HD and nothing more if they can't get what they need with the physical evidence tough bananas for the prosecution.
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 1:35 pm

Quoting StarAC17 (Reply 5):
c'mon DA's hire anonymous to hack the HD at least.

The problem with cases like this will be that it will drive law enforcement will use the system to pressure commercial vendors to provide back doors into their products, and as we see via things like the Patriot Act, government usually gets its way when it comes to privacy issues.

Quoting StarAC17 (Reply 5):
What is the penalty for telling the judge to get stuffed (contempt of court I think) vs. the penalty for actually admitting to a fraud? If they can't prove guilt with the available evidence then tough on them they are trying a case they have no business trying the case.

I suppose the accused could say they forgot the password, or it was written on a piece of paper that I burned, etc.

I'm glad the case is being fought, but I'm afraid the outcome in today's climate will be yet another loss of personal freedom.
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 1:49 pm

Quoting PanHAM (Reply 4):
I am surprised that in the US people have to cooperate with the justice to incrimnate themselves.

In Germany, you can even lie to a judge, to the state attorney and the police anyhow. THEY have to prove you are guilty, you have the right not to incriminate yourselve. Even spouses and children cannot be forced.

You can do the same in the US (assuming when lying you are not under oath). That is what the 5th amendment is all about.
 
rfields5421
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 1:59 pm

Quoting flyingturtle (Reply 3):
To be a 4th Amendment issue, the police needed to have a search and seizure warrant for the laptops content. Such a warrant must be specific - but until the file (or harddisk) is decrypted, the police can't know what they are searching for. So it may very well be a case of "fishing for evidence".

This is no different from police seizing a file cabinet, looking for a specific document(s). While the warrant has to list evidence of a crime and seek documents / files to support that evidence - the warrant doesn't have to describe the document/ file in detail which is suspected to exist.

That is not fishing for evidence.

There is NO requirement for the person under investigation to tell the police that other file cabinets of documents (or hard drives) exist. The police have to find that they exist and their location under normal rules of evidence.

Quoting flyingturtle (Reply 3):
but I thought that only witnesses to a crime had a duty to give testimony. If I would receive her password, I would refuse testimony on the grounds that I haven't witnessed any wrongdoing.

A witness has to answer questions truthfully. The witness is not allowed to decide if they saw or did not see criminal behavior. If you received her password and lied - that is perjury and can carry criminal penalties greater than the original crime in some cases.

Quoting PanHAM (Reply 4):
In Germany, you can even lie to a judge, to the state attorney and the police anyhow.

In the United States you can be convicted of Obstruction of Justice for lying to any of those. Martha Stewart was sent to federal prison for saying she did nothing wrong. She was not convicted of any insider trading or other financial crime. Only for telling federal investigators she was innocent and did nothing wrong. People go to jail every year because they lie to investigators. The prosecutors cannot prove the crime occured, but they can prove the suspect lied to inhibit the investigation.

Quoting flyingturtle (Reply 3):
If it is a 5th Amendment issue, it is relevant whether giving the password - or producing a decrypted version of the file (or harddisk) would be self-incriminating. She would have to prove that it is self-incriminating. Without releasing the password or the decrypted file, only she can tell.

This gets very case specific. We probably don't have enough details to know if this would be a 5th amendment issue, or not.

Quoting StarAC17 (Reply 5):
What is the penalty for telling the judge to get stuffed (contempt of court I think)

She would likely be convicted of obstruction of justice and sentenced to a couple years, probably serving about 6 months.

Here is another thing - the prosecution could give her exemption from any crime discovered by evidence found on the hard drive, but use what is found on the hard drive as evidence agianst her 'co-conspirators'. In that instance, the 5th Amendment claim is not valid.
 
PanHAM
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 2:00 pm

... and under oath yuo simply don't answer the question. So what is this all about, if the 5th amendment gives you the right?

If they can't hack a password, tough luck.
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 2:21 pm

Quoting EA CO AS (Thread starter):
Do you see a Fifth Amendment issue here?

I don't think I do, but I recognize the gray area. The Fifth Amendment means you cannot be forced to TESTIFY against yourself. It does not give you the right to block the admission of evidence.

The reason it may be gray is that it is not that different from the state demanding you tell them who has incriminating knowledge against you. However, it is also not that different from searching a suspect's house for incriminating evidence. Obviously, with a search warrant, you can search a suspect's house. I would conclude that with a search warrant, you can search a person's computer.

Quoting PanHAM (Reply 4):
In Germany, you can even lie to a judge

Really? That is quite surprising if true. Are you sure it's not like in the US, where you cannot be forced to testify against yourself, but if you do, you are sworn to tell the truth? Lying under oath is still lying under oath.
 
ALTF4
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 2:40 pm

Quoting ltbewr (Reply 1):
If she had a safe with a combination lock requiring number and pattern of turning the wheel to unlock, it would probably have to be given.

Actually, I believe this might not be true. I'm still trying to find out, but from what I know, if the key is physical, it has to be handed over as evidence. If its non-physical (i.e. a combo lock), it cannot be forced to be "handed over", as there is no physical "it" that has to be handed over.

Quoting ltbewr (Reply 1):
Police all the time get into computers and search without a password to obtain info on their hard drives to arrest and prosecute cases

And as they have tried on this computer. They just have not been able to get in.


In my opinion (and I work with computer forensics people every day and work for a large computer information security company - so take what I say with a grain of salt as I'm a tech guy and not a lawyer), this comes down to two differences between a fire-safe or a lockbox and an encrypted computer.

1) The "key" to get into the locked safe can be required to be given up.

2) If the key cannot be given up, for whatever reason, LEOs can break in to the safe, pick the lock, drill the hinges off, contact the manufacturer for a master key, etc.

So, this, in my opinion, parallels a "what if" scenario of you building an impenetrable safe and losing the key. Law enforcement is unable to break in to the safe... and there is no physical key. What do you do?

All of that said, this defendant appears to be smarter than a few others that have thought using encryption was a good idea. Most people use the same password for their encryption as they use to their gmail account or other accounts. A subpoena to Google and a few days of cracking a password hash later, they have the password. Or, they search the defendant's wallet and... hey look, there's the password!

Better yet, the encryption should be done in such a way that it appears that there is no encrypted data on the hard drive... just a bunch of random data.

[Edited 2012-01-25 06:41:17]
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rfields5421
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 2:40 pm

Quoting poLOT (Reply 7):
You can do the same in the US (assuming when lying you are not under oath). That is what the 5th amendment is all about.

Incorrect.

You can refuse to answer on the grounds that the answer might tend to incriminate you. At that point you stop answering any and all questions unless a judge says that specific question/ answer cannot be used against you.

However, you cannot give lies or false information for an answer. That is a crime.
 
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 2:41 pm

Quoting EA CO AS (Thread starter):
I can see both sides to the argument, however once all is said and done her password is part of the contents of her mind. If the encryption could be broken by a physical key, the court's order wouldn't be an issue. But since the encryption can only be unlocked by using the contents of her mind, I'd imagine that compulsion would be unconstitutional.

I think the situation is very clear. The investigators have every right to prod and poke through the computer, and make every attempt to crack through the encryption. But she has the right to remain silent. This is precisely why the 5th amendment was written - the investigators have to be able to prove her guilt without her help (aka without a confession)

Oh, and by the way, a legitimate investigation would have no problem getting a bypass code from the provider of the encryption software, if it is American. As I understand it, the NSA has those codes and can use them to decrypt anything encrypted by Norton or other security software. I suppose a court order to the software company should provide it.

The lesson - get your encryption software from a company that has nothing to do with the US.

[Edited 2012-01-25 06:45:53]

[Edited 2012-01-25 06:46:37]
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 3:14 pm

Quoting dreadnought (Reply 13):
Oh, and by the way, a legitimate investigation would have no problem getting a bypass code from the provider of the encryption software, if it is American. As I understand it, the NSA has those codes and can use them to decrypt anything encrypted by Norton or other security software. I suppose a court order to the software company should provide it.

The lesson - get your encryption software from a company that has nothing to do with the US.

I'm gonna have to call SOURCE on that one.
 
PanHAM
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 3:20 pm

Quoting rfields5421 (Reply 8):
In the United States you can be convicted of Obstruction of Justice for lying to any of those. Martha Stewart was sent to federal prison for saying she did nothing wrong.

That may have even been her true belief. I don't want to divert this thread ow to another topic, but I can imagine a situation from my field of business where US district attourneys fabricated allegations which do not hold up in reality because they are day to day business, absolutely legal.

So simply not answering any questions which might incriminate yourself could in theorya also be called "obstruction of justice" . At the end of the day this is a justic esystem whoich is not just.

Quoting dreadnought (Reply 13):
The lesson - get your encryption software from a company that has nothing to do with the US.

Most important for all not living in the USA - don't do any business there and not with US companies either. Avoid the country like the plague.

Diclaimer - I still like the USA, but the justice system has gone bananas. People get indicted and prosecuted for stuff that would not even raise an eyebrow here.
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 3:32 pm

From the opinion:

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. CONST. Amend. V. Nevertheless,
“the Fifth Amendment does not independently proscribe the compelled production of
every sort of incriminating evidence.” Fisher v. United States, 425 U.S. 391, 408, 96
S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976). Instead, “the privilege protects a person only
against being incriminated by his own compelled testimonial communications.” Id., 96
S.Ct. at 1580.


Although the privilege applies typically to verbal or written communications, an
act that implicitly communicates a statement of fact may be within the purview of the
privilege as well. United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043 ,
147 L.Ed.2d 24 (2000); Doe v. United States, 487 U.S. 201, 209, 108 S.Ct. 2341,
2347, 101 L.Ed.2d 184 (1988) (Doe II). More specifically in the context of this case,
“[a]lthough the contents of a document may not be privileged, the act of producing the
document may be.” United States v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1242, 1242,
79 L.Ed.2d 552 (1984) (Doe I). Production itself acknowledges that the document
exists, that it is in the possession or control of the producer, and that it is authentic.
Hubbell, 120 S.Ct. at 2043.

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf


Quoting PanHAM (Reply 15):
So simply not answering any questions which might incriminate yourself could in theorya also be called "obstruction of justice"

This is not true. Not answering questions that may incriminate yourself is the VERY protection of the fifth amendment.

Obstruction of justice comes in when you refuse to cooperate with (or actively work against) an investigation that cannot result in your conviction. (I.e., if you are granted immunity, you no longer have fifth amendment protections, and must cooperate.)

[Edited 2012-01-25 07:45:09]
 
kingairta
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 3:45 pm

Why do people insist that electronic data has to be treated differently then data on paper?
 
flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 3:54 pm

Quoting KingairTA (Reply 17):

We don't treat it differently. In either case, you don't have to help the prosecutor convict yourself. Just stand aside and watch.

Either the cops get the incriminating information on paper by using a blowtorch on your safe.

Or they try their damnedest to decrypt your files.
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ALTF4
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 4:07 pm

Quoting dreadnought (Reply 13):
Oh, and by the way, a legitimate investigation would have no problem getting a bypass code from the provider of the encryption software, if it is American. As I understand it, the NSA has those codes and can use them to decrypt anything encrypted by Norton or other security software. I suppose a court order to the software company should provide it.

The lesson - get your encryption software from a company that has nothing to do with the US.

Sorry, but that's BS. Almost all of these software suites use encryption algorithms that were not developed by that company; for instance AES, twofish, blowfish, serpent, etc. The only possibility is if the keys are stored on the hard drive and 'encrypted' using a password, and stored twice; once using the user's password and once using the "bypass code". Of course, since most encryption setups use PKI and in some cases smart cards, which itself contains the keys, there's no possibility for a "bypass code".
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 4:21 pm

Quoting flyingturtle (Reply 18):
We don't treat it differently. In either case, you don't have to help the prosecutor convict yourself. Just stand aside and watch.

But if someone gets a search warrant for your house, you can't board it up and prevent their entry.

The question is, do you have to give them the keys, or otherwise let them in. I think the answer is yes!
 
ALTF4
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 4:28 pm

Quoting D L X (Reply 20):
The question is, do you have to give them the keys, or otherwise let them in. I think the answer is yes!

But the difference is, if you board it up and prevent entry, they force their way in, so it is pointless for you to do so.

They cannot force their way in to a computer... so it becomes reasonable for you to effectively board your computer up and prevent their entry. The law just doesn't know how to handle it right now.

We might be arguing the same point... but I'm thinking you're saying that the password for the computer must be turned over, since physical keys must be turned over to a house.
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redflyer
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 4:31 pm

Quoting Revelation (Reply 6):
I suppose the accused could say they forgot the password, or it was written on a piece of paper that I burned, etc.

My thoughts exactly and I hope Ramona Fricosu will come up with that very excuse.

Quoting Revelation (Reply 6):
I'm glad the case is being fought, but I'm afraid the outcome in today's climate will be yet another loss of personal freedom.

This is total bullshit on the part of law enforcement. If I were in her shoes I'd go to jail before I'd give up a password. If they want access to the hard drive they can figure out how to do it. If they want access to my house and they have a warrant, I doubt they'd ask me for the key (if they did I'd tell them to go screw themselves) and they would just figure out how to enter, such as breaking the locks on the door.
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 4:32 pm

Quoting ALTF4 (Reply 21):
but I'm thinking you're saying that the password for the computer must be turned over, since physical keys must be turned over to a house.

That is the point that I'm making, with the caveat that this is a novel legal issue, and I'm actually not 100% sure which way I'm going on it. Kind of thinking out loud, as it were.
 
flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 5:25 pm

Quoting D L X (Reply 20):
But if someone gets a search warrant for your house, you can't board it up and prevent their entry.

The question is, do you have to give them the keys, or otherwise let them in. I think the answer is yes!

Well, I can board up my house. Or put my papers in a safe and throw the key away. But not after the court serves the search warrant. This would mean obstructing the search. The same could be held for data which I encrypt before the court serves such a warrant or a subpoena.


Wikipedia now has an article on the case itself, http://en.wikipedia.org/wiki/United_States_v._Fricosu

There, I found this legal review http://www.jetlaw.org/wp-content/journal-pdfs/McGregor_online.pdf on the Supreme Court's stance on "private papers" and which analogies can be drawn to encrypted files in regard to the Fifth Amendment. I suggest reading it. It's only 29 pages.   

One interesting point is that when the court subpoenas physical files - like my personal notes on paper - I would have to hand them to the court. But a subpoena telling me to produce the decrypted file would ask me to create something which, at the time the subpoena was written, did not already exist. So a the analogy to papers locked into a safe is not that strong.

I'm reading the paper this evening... so... have a nice time!

Edit: Another thing that haunts this topic is that having to produce the password would be fine under the Fifth Amendment, because the password itself does not contain any self-incriminating information. So: Does the Fifth Amendment protect you from having to give self-incriminating evidence, or does it also protect you from producing "harmless" information, which, in the end, would incriminate yourself?



David

[Edited 2012-01-25 09:28:53]

[Edited 2012-01-25 09:30:20]
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mham001
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 5:29 pm

Quoting ALTF4 (Reply 11):
Better yet, the encryption should be done in such a way that it appears that there is no encrypted data on the hard drive... just a bunch of random data.

TrueCrypt. Hidden container.

Quoting PanHAM (Reply 15):
Most important for all not living in the USA - don't do any business there and not with US companies either. Avoid the country like the plague.

Diclaimer - I still like the USA, but the justice system has gone bananas. People get indicted and prosecuted for stuff that would not even raise an eyebrow here.

There you go again. You are confused. Basing your contempt on misinformation gleamed from whatever rumors you read. The NSA does not have a backdoor. It has not played a part in developing (commercial) algorithms since DES. The NSA did have means to prevent the export of US based encryption technology.
A little research will also show that the US does not have a Key Disclosure Law, unlike some other (Euro) countries. In fact, the UK has already jailed at least 3 people for this.

There was a previous case in which US Customs saw child porn on a laptop and then couldn't access the computer again. The judge did not order the defendant to divulge the password but ruled instead that because they had already seen the evidence, the password was not relevant.

[Edited 2012-01-25 09:31:10]
 
flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 5:39 pm

Quoting mham001 (Reply 26):
The NSA does not have a backdoor.

Best evidence: The source code for TrueCrypt is freely available. Anybody can check it for any backdoors. The only attack possible is a side-channel attack (keylogger, somebody watching you type the password, divulging the password through social engineering or torture...).
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rfields5421
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 5:44 pm

Quoting mham001 (Reply 26):
The NSA does not have a backdoor.

Having once worked for a USN squadron assigned to the NSA for operational control - I would not bet upon the NSA not being able to read anything.

However, the critical point is the NSA - the National Security Agency - is an intelligence agency of the Department of Defense authorized to conduct operations against foreign nations and nationals.

Yes, I know the NSA has been involved in some domestic wiretapping, likely illegal. However, those were 'terrorist' cases.

The NSA is not a law enforcement agency. No matter how you slice it bank fraud, wire fraud and money laundering are not terroristic acts and it would be illegal for the NSA to assist in decrypting the hard drive.

While I'm sure no one in the NSA would go to jail, their decrypting the hard drive would posion the case against the defendant, likely ensuring a directed verdict of not guilty.
 
Maverick623
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 5:45 pm

Quoting flyingturtle (Reply 3):
Such a warrant must be specific - but until the file (or harddisk) is decrypted, the police can't know what they are searching for.

They know what they are searching for: files related to this mortgage scam case. Trust me when I say that's plenty specific.

Quoting flyingturtle (Reply 3):
She would have to prove that it is self-incriminating.

Not at all. The burden is on the prosecution to prove that it's not. Otherwise, she would have to give the reason why it's self-incriminating, thus incriminating herself.

Quoting D L X (Reply 10):
The Fifth Amendment means you cannot be forced to TESTIFY against yourself.

Look at it this way: let's say this is a traditional paper document, written in code or some obscure foreign language that can't be translated. Would you say it was right for the court to order her to translate the document? Of course not, that would be self-incriminating.

No difference here. Giving up the password (a translation key, if you will) is her producing evidence that would incriminate herself

Quoting dreadnought (Reply 13):
As I understand it, the NSA has those codes

     

Not only is that completely bogus, but even if they did the NSA would laugh at any lowly prosecutor trying to get those codes for a small-time scam case.

Quoting PanHAM (Reply 15):

So simply not answering any questions which might incriminate yourself could in theorya also be called "obstruction of justice" . At the end of the day this is a justic esystem whoich is not just.

In the UK, that is absolutely true (You may not say anything when questioned, but it may harm your defence if you do not mention something which you later rely on in court). Not in the US. I have a strong feeling this is going to be overturned.
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mham001
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 6:00 pm

Quoting rfields5421 (Reply 28):
I would not bet upon the NSA not being able to read anything.

Agreed. But not through a backdoor. And like you and others mentioned, their processing power will not be wasted on something this low.
 
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Dreadnought
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 6:23 pm

Quoting Maverick623 (Reply 29):
Not only is that completely bogus, but even if they did the NSA would laugh at any lowly prosecutor trying to get those codes for a small-time scam case.

I said they could get it from the software company, not the NSA. A simple court order would do it. All those programs must have a back door, just like your home security alarm has a back door available to its manufacturer - remember the guy they caught a few years ago who robbed a bunch of houses because he saw his former employer's security sign in the window, and he knew the override code.
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 6:55 pm

Quoting rfields5421 (Reply 28):
Having once worked for a USN squadron assigned to the NSA for operational control

Having once worked for a USN squadron assigned to the NSA, you should know to keep your mouth shut about what you did there.

Quoting rfields5421 (Reply 28):
I would not bet upon the NSA not being able to read anything.

That is completely different from there being a back door. Dreadnought's claim still needs a source.

Quoting Maverick623 (Reply 29):
Look at it this way: let's say this is a traditional paper document, written in code or some obscure foreign language that can't be translated. Would you say it was right for the court to order her to translate the document? Of course not, that would be self-incriminating.

Perhaps, perhaps not. Another appropriate analogy is that it's a document behind her locked door. If the state gets a search warrant, can she change the lock on the door or barricade the door? No. In fact, if I'm not mistaken, she may be required to open the door. How opening the door any different from supplying a password?

It's a neat argument either way. Clearly the Constitution was not written with this in mind.

Quoting dreadnought (Reply 31):
I said they could get it from the software company, not the NSA.

And we're saying they cannot.

Quoting dreadnought (Reply 31):
All those programs must have a back door

Still asking you to provide a source for your claim. A lot of us here believe it to be bogus.
 
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Dreadnought
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 7:01 pm

Quoting D L X (Reply 32):

Still asking you to provide a source for your claim. A lot of us here believe it to be bogus.
http://www.google.com/url?sa=t&rct=j...Izj_WIAHsnmi0VGxARnucHlg1A&cad=rja

http://www.wired.com/politics/securi...tters/2007/11/securitymatters_1115

I highly doubt that the US government would allow the sale of any encryption key that it cannot break into.
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flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 7:02 pm

Quoting dreadnought (Reply 31):
I said they could get it from the software company, not the NSA. A simple court order would do it. All those programs must have a back door, just like your home security alarm has a back door available to its manufacturer - remember the guy they caught a few years ago who robbed a bunch of houses because he saw his former employer's security sign in the window, and he knew the override code.

No. Only in movies you see something like this:

Password: _________

ACCESS DENIED.

Password: __________

ACCESS DENIED.

Override Password? Y/N

ACCESS GRANTED.


See. TrueCrypt has no "manufacturer". It's source code is freely available and everybody can develop it further. And any programmer with more than two brain cells would take extreme care in eliminating any security holes. Encryption is where trust FOSS (free & open source software) most.
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flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 7:14 pm

Quoting rfields5421 (Reply 28):
Having once worked for a USN squadron assigned to the NSA for operational control - I would not bet upon the NSA not being able to read anything.

Given your age, it's reasonable that the NSA had their advantage during these times. There was a small number of cryptography firms, and one of these was the famous http://en.wikipedia.org/wiki/Crypto_AG that supplied machines to Libya. It is suspected the US could read the traffic.

Today, thanks to fast computers cryptography is a more openly researched field. If there is a cryptanalysis of an encryption algorithm, chances are much better the world will know about it.
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 7:33 pm

Quoting dreadnought (Reply 33):
http://www.google.com/url?sa=t&rct=j...Izj_WIAHsnmi0VGxARnucHlg1A&cad=rja

http://www.wired.com/politics/securi..._1115

So, in Reply 13, you state that the NSA HAS codes to enter encrypted files through a back door, that Norton has this back door, and it would be easy for law enforcement to enter the back door.

Then you post these two articles as your proof.

I hate to say it, but I fail to see any proof here. The first article says that the government wanted it. But can you find a signed bill? (If you think SOPA caused an uproar, you'd be blown away by the uproar THAT congressional hearing would cause.)

The second article is asking the question of whether the NSA put in a back door. It too has no proof -- it just makes conjecture. Even it adds: "Of course, we have no way of knowing whether the NSA knows the secret numbers that break Dual_EC-DRBG. We have no way of knowing whether an NSA employee working on his own came up with the constants -- and has the secret numbers."

FACT: every time it has been suggested that the NSA's suggestions are motivated by ulterior motives, it has later been found by doing the math that the numbers the NSA suggested OPTIMIZE the strength of the algorithm. Remember, these algorithms are going to be used by our military also. Back doors and other weaknesses are discoverable. We do not want them discovered by our enemies.

I think you may need to retract your statement.
 
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Dreadnought
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 8:26 pm

Quoting D L X (Reply 35):

I think you may need to retract your statement.

Torture me, kill me, but I shall NEVER surrender!

Ok,ok, maybe there is no back door - at least none we know about. What if these stories were planted just to make bad guys feel secure in using them, eh?

Just a thought...
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D L X
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 8:59 pm

Quoting dreadnought (Reply 36):
Torture me, kill me, but I shall NEVER surrender!

HAHAHA

Charles, I don't think you've ever given me a laugh like that in what, 10 years on this site? Thank you.  
 
ALTF4
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 9:00 pm

Quoting D L X (Reply 23):
That is the point that I'm making, with the caveat that this is a novel legal issue, and I'm actually not 100% sure which way I'm going on it. Kind of thinking out loud, as it were.

I think we're all thinking aloud here  

I'm curious to know what LEOs would do if they came across a physical safe they could not open, and the defendant claims to have "lost" the physical keys, similar to how you might "forget" a password. I can't seem to find any answer to that. It is purely a "what-if", because I doubt they have ever come across such a scenario?

Quoting mham001 (Reply 25):
TrueCrypt. Hidden container.

Yeah, works well enough, but there are other methods that provide even better plausible deniability. I'm not comfortable posting most of them here, though.
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Dreadnought
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 9:06 pm

Quoting ALTF4 (Reply 38):
I'm curious to know what LEOs would do if they came across a physical safe they could not open, and the defendant claims to have "lost" the physical keys, similar to how you might "forget" a password. I can't seem to find any answer to that. It is purely a "what-if", because I doubt they have ever come across such a scenario?

You can always get into a physical safe - it might take you a few hours with an acetylene torch, but it's not that hard.

A computer file is much harder.
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ALTF4
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 9:13 pm

Quoting dreadnought (Reply 39):
You can always get into a physical safe - it might take you a few hours with an acetylene torch, but it's not that hard.

A computer file is much harder.

Yes. The question is a "what if". I know it is just about pointless to ask such a question since the answer is "well, it can't happen".

Now, while we're on the topic, a few hours with an acetylene torch will render the contents destroyed, correct?
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flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 9:52 pm

The paper I read (as mentioned before) told a lot about the "private papers" legal practice supported by the Supreme Court. If you have voluntarily written papers and files, they can be seized although they're incriminating you. The 5th Amendment will not protect you. The 4th Amendment would protect you against unlawful search and seizure of documents.

On the other hand, the 5th protects you from handing over papers you were made to produce. For example if you were forced to write down self-incriminating information, these notes can't be subpoenaed under the 5th Amendment.

Now it gets interesting. You decided to store data and encrypt it. The case of the "private papers" applies. But then, nobody can force you to decrypt your data and hand it over. However, if you have already written down the password, it can be subpoenaed.
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Tugger
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RE: Judge: Give Up HD Password. Constitutional?

Wed Jan 25, 2012 11:55 pm

Quoting flyingturtle (Reply 3):
To be a 4th Amendment issue, the police needed to have a search and seizure warrant for the laptops content. Such a warrant must be specific - but until the file (or harddisk) is decrypted, the police can't know what they are searching for. So it may very well be a case of "fishing for evidence".

From what I understand the police have the defendant on tape stating that incriminating evidence is on the computer. I will try to find more on it.


Quoting D L X (Reply 31):
Perhaps, perhaps not. Another appropriate analogy is that it's a document behind her locked door. If the state gets a search warrant, can she change the lock on the door or barricade the door? No. In fact, if I'm not mistaken, she may be required to open the door. How opening the door any different from supplying a password?

It's a neat argument either way. Clearly the Constitution was not written with this in mind.

Could it be like she has given the data and the key to "someone else", and she refuses to divulge the name of that person and so the authorities cannot get the information?

Can a defendant be compelled to reveal the name of a person they gave information too? That information would also be "of the mind". I would think that however my example is handled should be able to be used to determine this case.

Just a thought.

Tugg
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Maverick623
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 1:43 am

Quoting tugger (Reply 42):

From what I understand the police have the defendant on tape stating that incriminating evidence is on the computer.

Well, in that case, the whole point is moot. She would have already given up her 5th Amendment rights, and now must produce access to the files in question or be held in contempt (or charged with obstruction/tampering with evidence).

Quoting tugger (Reply 42):
and she refuses to divulge the name of that person and so the authorities cannot get the information?

If she says she gave it to someone else, she is compelled to name that person, because she already incriminated herself. If she didn't say anything at all, she still retains her 5th Amendment rights.

Quoting tugger (Reply 42):

Can a defendant be compelled to reveal the name of a person they gave information too?

Only if they admit to giving information to someone.



So, for anybody out there who doesn't want to find themselves in this situation after committing a crime: don't say a word to anybody but your lawyer.
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Tugger
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 2:06 am

Quoting Maverick623 (Reply 43):

Well, in that case, the whole point is moot. She would have already given up her 5th Amendment rights, and now must produce access to the files in question or be held in contempt (or charged with obstruction/tampering with evidence).

Here is what I found on it:

Quote:
Prosecutors also produced a telephone conversation recorded between Fricosu and her co-defendant and ex-husband, Scott Whatcott, who at the time of the search was incarcerated on state charges at the Four Mile Correctional Center in Colorado. Discussing the laptop the day after the search of the house, Fricosu told Whatcott, "So um, in a way I want them to find it ... in a way I don't just for the hell of it."

Asked, "It was on your laptop?" by Whatcott, Fricosu replied, "Yes." Later, she said, "My lawyer said I'm not obligated by law to give them any passwords or anything they need to figure things out for themselves."

In his judgment, Blackburn referenced that conversation ....
http://www.informationweek.com/news/security/encryption/232500386
Of course we don't know the full conversation, we don't know if they stated what "it" was.

Quoting Maverick623 (Reply 43):
Quoting tugger (Reply 42):

Can a defendant be compelled to reveal the name of a person they gave information too?

Only if they admit to giving information to someone.

So in this case she admitted to "giving" the information to the computer. And if that is the case then I can see why she can be compelled to reveal "the name" aka the password.

Tugg

[Edited 2012-01-25 18:10:16]
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Maverick623
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 7:06 am

Quoting tugger (Reply 44):

So in this case she admitted to "giving" the information to the computer.

No, because the computer is not a person.


However, reading your linked article, it appears that the judge fouled up the order. While she has the right to not give them any passwords or keys, they can order her to produce the unencrypted files, since she openly admitted that the hard drive contains evidence of a crime.

Like I said, if this were some paper document written in code, she would not have to give up the cipher, but rather produce a deciphered copy.
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flyingturtle
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 11:17 am

Quoting Maverick623 (Reply 45):
since she openly admitted that the hard drive contains evidence of a crime.

And what happens, for example, if I admitted to having evidence of a mortgage scam in the encrypted file, but it is still my secret that in the same file lies evidence for a much worse crime I've committed?

Informing the judge of unspecified worse crimes would open a wholly different can of worms.

Do I still have to divulge the password?
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StarAC17
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 2:19 pm

Quoting D L X (Reply 10):
Really? That is quite surprising if true. Are you sure it's not like in the US, where you cannot be forced to testify against yourself, but if you do, you are sworn to tell the truth? Lying under oath is still lying under oath.

Yes but like all crimes perjury and obstruction of justice have to be proved.

Quoting redflyer (Reply 22):
This is total bullshit on the part of law enforcement. If I were in her shoes I'd go to jail before I'd give up a password. If they want access to the hard drive they can figure out how to do it. If they want access to my house and they have a warrant, I doubt they'd ask me for the key (if they did I'd tell them to go screw themselves) and they would just figure out how to enter, such as breaking the locks on the door.

I would say the same, I think it is a matter of what penalty is worse getting charged the crime you are being tried for or obstructing justice. As far as I know (yet) there is no way to obtain of conviction of a crime if you interfere with the judicial process as the evidence is gone and you we be charged with perjury or obstruction of justice.

Quoting Maverick623 (Reply 28):
Look at it this way: let's say this is a traditional paper document, written in code or some obscure foreign language that can't be translated. Would you say it was right for the court to order her to translate the document? Of course not, that would be self-incriminating.

They would get a translator to do that job like they should be getting an encryption expert to gain access to this HD
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DeltaMD90
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 6:40 pm

Quoting StarAC17 (Reply 47):
Quoting Maverick623 (Reply 28):
Look at it this way: let's say this is a traditional paper document, written in code or some obscure foreign language that can't be translated. Would you say it was right for the court to order her to translate the document? Of course not, that would be self-incriminating.

They would get a translator to do that job like they should be getting an encryption expert to gain access to this HD

Just because we are doing hypothetical, this one may actually pop up. What if a file was not encrypted but written in a code you made up? Surely you wouldn't have to translate it for them...
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Gingersnap
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RE: Judge: Give Up HD Password. Constitutional?

Thu Jan 26, 2012 7:17 pm

That's what a boot nuke is for.
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