Wow I think they got one right. It will be interesting to see how the government continues. Since currently its only a decision in the 11th circuit. If the government appeals, it goes to the supremes and if they hold that its a violation of your fifth amendment then everyone in the country gets to claim the fifth rather than give up the key.
While I hate evil doers just as much as the next person I dislike the loss of civil liberties even more.
Rag doll: so long as they can manipulate your uncooperative unresisting body to do something (apply thumbprint, get DNA sample), they can order you to cooperate. They cannot, however, compel you to do something which they otherwise have no case without.
Sawz-all: so long as getting into a safe (or whatever) is just a normal matter of time and money, they can order you to open it. If, however, "opening" an encrypted volume or some such by brute force will take something on the order of heat death of the universe, and otherwise they have no case, you can stay silent.
If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents? To me, the hard drive platter is the paper, whereas the encrypted data is the contents of the papers.
Those analogies miss a key point. Only the testimonial aspects (e.g., implicitly acknowledging that the files actually exist and are under one's control) are protected. Furthermore, under the “foregone conclusion” doctrine, even the testimonial aspects may not be fully privileged.
See Footnote 19: "If in the case at hand, for example, the Government could prove that it had knowledge of the files encrypted on Doe’s hard drives, that Doe possessed the files, and that they were authentic, it could compel Doe to produce the contents of the files even though it had no independent source from which it could obtain the files."
Am I correctly understanding this decision to mean that, if the government already knows there's incriminating data on the drive, a compelled decryption would not be testimonial (as in the referenced cases from the 5th Circuit); but that the gov't can't compel decryption in order to go on a "fishing expedition", as any evidence found would be self-incriminating, and thus incur 5th Amendment protection?
If so, that sounds spot-on correct to my (admittedly, lay and NAL) understanding of the issues.
I take a slightly different view in that one should never have to cooperate in any way in his own prosecution. Except for computers, nothing else is mandatory; if you refuse to be arrested, the cops will taze you (bro), if you go on a hunger strike in prison, the guards will tie you down and feed you through a tube, and so on. With all that as context, it seems absurd that you should have to type your innermost thoughts into a laptop so that the government can send you to jail.
If they don't have a case without the contents on the drive then they don't have a case! I scoff at the prosecutors that claim "but if we can't get the encrypted contents then criminals will get away!" Hey dipsticks! Maybe you should collect other evidence and maybe make sure you build up a case that doesn't strictly rely on the contents of a hard drive that you don't even have possession of. Okay, so lets say you get the drive decrpyted... how you gonna prove who/how the contents got on the drive?
Well, that's exactly the point of the case - if the defendant decrypts it, by that fact he proves he knew the password - meaning, he is the owner of the drive and had control over it. Giving by that to the police proof of both that the content was illegal and that he owned it. Unfortunately for them (but fortunately for the defendant) the court did not go their way.
> how you gonna prove who/how the contents got on the drive?
There's no such thing as 100% proof. It's about being "beyond reasonable doubt", and as 'weaselly' as that might sound, it's true. If they intercept data coming over the wire, to your PC, and you have been the only person home and the chances that someone would plant a few terabytes of illegal data on your drive at those precise times...
In the case of US vs Fricosu, merely having the documents the government says exist on the encrypted drive does not in itself constitute a crime (like child pornography would/does in the case mentioned in this story).
So, if we take a step back and ignore that the person who holds the key to the "safe" (the decryption key to the hard drive) is the defendant and pretend it is you or I that hold the key, then you and I could be compelled to decrypt the drive and disclose its contents or face contempt of court. Now if I was forced by the court to decrypt the drive,prior to doing so I would ask (and require) immunity from any and all evidence found that would/could incriminate me. It also appears the government is aware of a document or documents that exist and have certain contents... this is all they have a warrant for and are asking for.
Change the scenario. The police have reason to believe that there is a gun in a safe that I own that was used in a murder. The have enough evidence to obtain a search warrant and compel me to open the safe. I didn't commit the murder but supposed someone else did. The force compels me to open my safe. Me owning the safe or the gun in itself is not a crime and is not incriminating. Perhaps I have a stash of drugs in my safe too. Prior to opening the safe I will ask for (and require) immunity for any crimes that stem from obtaining or finding any other evidence not listed on their search warrant. I'm sure there will be some back and forth on this as to limit what degree of immunity I actually receive... but believe you me, I will make certain any thing related to the drugs I know exist in there which is completely unrelated to searching for and obtaining a gun. Nothing wring with being compelled to opening the safe.
Take the above scenario with one small change I (or you) the owner of the safe (that contains the gun, or so the government believes) is person accused of the murder. I will still ask for and go after immunity for anything not related to the current case. Owning the safe, and the gun, in itself is not a crime so unlocking the safe and allowing for the search is not incriminating in itself. The government still needs to build a case that I pulled the trigger on the gun and murdered someone (not that I merely knew that I had A gun or that I possessed a gun that I didn't know was used in the commission of a crime).
The sticky point is, how can the government prove that a person knows the combination to a safe (or decryption key for a hard drive)? This is what the judge and court is trying to determine in the Fricosu case. Can she and does she know the key? And if she refuses to unlock it or says she doesn't know how can they "prove" she's lying?
I've always wondered this about forced decryption: what if you have large random files on your harddrive? (irrelevant how they got there -- you may not even know) For all intents or purposes these look like encrypted data, and if they could force you to "decrypt" them you have a problem of Kafkaesque proportions.
Is there any rule that data on your drive should be somehow sensible and decryptable to human-understandable information, using keys that you have in your head?
People wanting to use encrypted volumes; or encrypted drives; or who delete individual files; or who wipes discs[1] often use writes of random data to 'sanitise' the drive before writing their data.
Thus, they're likely to have lots of random data strewn around their drives.
I have no idea what would happen if you coughed up two keys which unencrypted 30% of that random data; what would happen with the rest?
Realize that this is a fairly narrow opinion, and, in my opinion, not a particularly well-reasoned one.
The issue here is child pornography: the would-be defendant was suspected of having child pornography on various hard drives which were encrypted. The court states that the actual contents of the hard drive are themselves not testimonial—that is, they are not covered by the Fifth Amendment and, if the government had access to the hard drives, they could present whatever was incriminating on them into evidence. So the issue is whether the act of producing the documents is a testimonial act and therefore covered by the Fifth Amendment
The court concludes that the act of production is a testimonial act because, one, the testimony was not a "foregone conclusion." This holding is based on a case called Fisher v. United States, in which the Supreme Court stated that it was not testimonial to hand over certain papers that might have incriminating evidence because conceding that documents existed, that you had control over the documents, or that they were in your possession was not incriminatory given the circumstances of that case. Under the "foregone conclusion" doctrine, the government knew of the existence and location of these papers so the production of the papers added nothing or little to the government's information. If the government did NOT know that documents existed, they could not compel a would-be defendant to reveal the documents.
Second, and most importantly, the court concluded that decrypting the documents would "use the contents of [the would-be defendant]'s mind" because "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." It's again important to note that this is a child pornography case: possession of child pornography is a crime, so if the would-be defendant here provided a decryption key, this would be tantamount to him admitting that he possessed the hard drive and had access to the files within it—that alone would constitute a crime if the files were found to be child pornography. This is therefore what the court later refers to as an "implied factual statement" and the Fifth Amendment protects this. Although the court also suggests that providing a decryption key might be like providing a combination (and therefore be admissible for Fifth Amendment protection on other grounds), it unfortunately devotes very little space to this discussion—and this seems to be the really big issue here.
The case therefore leaves several unanswered questions: this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer? What if the foregone conclusion doctrine wasn't applicable—would the conclusion here be the same (most of the opinion is actually devoted to this discussion, which is less broadly applicable because, if the police know of the existence of specific files on hard drive, this doctrine is inapplicable)?
Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system.
In conclusion: the applicability of this case to future cases is unclear, so, for those that want this result, I don't really think this is a "slam dunk." There will likely be many future cases further developing this doctrine. As such, right now, it's very difficult to discuss the merits of the court's holding on the "decryption is testimony" argument (which, in my mind, is the most important) in a general sense, since the reasoning here seems very specific to the facts of case.
Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system.
Here's the sticking point for me: it's perhaps overly pedantic, but I want to view the world honestly, and there are some great points of absurdity here. (I always like the absurd, and the ways our world is otherworldly.)
The problem is that much of our approach to information is creative, and we need to start thinking in those terms.
If you have a JPEG of a murder on your unencrypted hard drive, that's not actually a photograph; it's a set of magnetic pointings which can with certain hardware be used to produce a photograph. If you think about it, that also applies to writing on paper, or colored splotches encoding an image into a physical photograph. Those require a creative attempt to produce meaning. The meaning can be off if the creative attempt is not followed through correctly. The easy way to see this is to imagine someone systematically using a common word in an uncommon way -- Feynman for example was once, on the Challenger commission, chasing down memos which sounded like NASA had been actively irresponsible, but instead it turned out to be a figure of speech they'd adopted for a certain phase of their construction. Or imagine that our demented individual really does have a very detailed, lifelike photograph which appears to document his murder of another, but in fact the "murdered" girl is a still-alive actress who was paid to appear in these photographs; the "blood" and such is very convincing but is ultimately a prop.
So the meaning can be off, if the creative act goes awry. I'm using this to underscore that you have to think, at some level, about that recreation of semantics from the physical fact.
Let me be clear: I don't think this is a barrier to investigation usually. I think it's clear that we expect a sort of 'normal hardware' that allows us to recreate semantics. The photographs in this safe, when viewed by a normal person in normal lighting, would show an image of the defendant committing a murder -- and if they want to say that this was all theatrically staged, they may produce the actress or others involved in the production. By that account, photographs inside of a safe are also governed by this principle: even if their physical location happens to be remote and inaccessible, reproducing the image from the photograph is as simple as just looking at it. The photograph really contains the image, up to a 'trivial' semantics.
Now bring this back to your other example of an encrypted disk storing child pornography. That is a nontrivial semantic inflation: you are literally asking the defendant to create child pornography for the purposes of the case. In some sense perhaps you're just saying "create whatever this drive's contents are," with the understanding that the police is going to look through it for child pornography -- in that phrasing, it's more clear that this pornography might not actually exist, etc. -- so there is perhaps a way to comply without generating child pornography at the judge's request.
But still, that's a little mad and absurd in the wonderful way that our world can be otherworldly. It opens up all sorts of questions which I have no clue how to answer. Decryption, like most computation, is a creative act. To demand decryption is to demand creation.
I quoted the above in particular because I really don't care about the "enormous problem for our justice system." Like, the fact that we don't have embedded realtime GPS trackers installed in our spines is an "enormous problem for our justice system" because it makes it so tremendously hard to figure out whether our alibis are true or false. Screw that sort of thinking. Whatever caused the investigators to think this individual was manufacturing or downloading kiddie porn should have been enough to convict. This shouldn't be a gray-matter area. "We just cracked down on this peer-to-peer kiddie porn program, we saw that you were using it to share many images, here are the filenames that the defendant's computer was sharing at the time we busted into his house with a warrant." (Are the police allowed to download such things? Probably. "Here are just a couple of the images we downloaded from him," too, then.) So, if they don't have a case and are fishing through the hard drive to try to make one, that's more or less explicitly what the Fifth Amendment is supposed to guard against: "we don't know your exact sins but we know you're a sinner so damn it, confess!"
But still, the sticking point is the glorious absurdity: "Mr. Doe, we have reason to believe that if you say the magic word, your computer will manufacture child pornography. We demand that you say the magic word, so that we know whether this is true." How will we decide that issue in the face of its pure and present absurdity?
this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer?
If someone is asked to decrypt their drive for a murder case, could they then invoke the Fifth Amendment on the basis that they might have child pornography? Can the Fifth Amendment protect you on an unrelated crime that you mention without either admitting to it?
> since the reasoning here seems very specific to the facts of case.
as it should be! i think that neither "all decryption is testimonial" or that "no decryptions are testimonial" are good policies. imho, decryptions should be treated in the same manner as other paper based evidence production requests: most of the time, the government cannot compel you to produce evidence testifying against you, but there are certain exceptions ("foregone conclusions" included).
> What if this was a murder case and the defendant had stored notes about his murder on the computer?
i don't think you're interpreting the "foregone conclusion" doctrine correctly. what it means is that keys, passwords, decryptions, etc cannot be used for the police to go on fishing expeditions for evidence. if they know you have incriminating evidence and can show that, then they can compel the production of that evidence. this is something that happened in US v Fricosu, in which Fricosu actually was compelled to decrypt. note that this ruling, which does not compel decryption, is entirely consistent with US v Fricosu
Those would be very fringe cases where they can't possibly catch a child pornographer without the data from his hard drive. You have to balance things out. The potential for abuse otherwise is a lot greater I think.
To me it all comes down to whether you have to force the cooperation of the defendant or not when gathering evidence. Part of the problem is bad analogies: "Demanding the private key to an encrypted volume is no different than demanding the combination to a safe" or any other equivalent concept. If the defendant doesn't provide the combination to a safe than the blowtorches are coming out. At no point is his cooperation a _necessary condition_ to the gathering of evidence. However, to demand the defendant disclose the private key --or the more common "we don't want the key, just what's inside" demand-- is to require his cooperation. It is now a necessary condition that the defendant comply in order to gather this evidence. And as such, it becomes an invasion into the mind of the defendant for the purposes of coercing a confession.
Indeed, the judge could grant immunity to the defendant, thereby requiring him under law to "testify" his private key, but then you don't have a case to prosecute. I wrote about this more thoroughly here http://aspensmonster.com/2012/01/26/on-private-keys-and-the-.... I'm curious to know what others think about all of this but lack the time to read through tens of pages of comments at the moment :P
I have some definite concerns with this. If producing the key via government coercion is legal, where do we stop? Right now, we have (admittedly) very crude technology that lets us probe the brain and tell with a reasonable certainty if someone is lying. It may be possible to produce a machine in the future that can analyze the mind well enough that it will be possible to tell what words a person is thinking. If that's the case, would it be legal to require the accused to be subject to such a machine to reveal their password? If that is the case, will the government need the accused's testimony at all?
Further along that line of thinking, it may become possible to change what a person is thinking by suppressing or exciting different regions within the brain. At that point, is punishment still legal if the government can simply change what a perpetrator thinks? For example, changing a con artist's mind so they no longer think of using their persuasive skills to con people. On the surface, isn't that what prison and the penal code is about anyway?
I believe we need to concern ourselves greatly about this, because we are now on the cusp of technologies that will make building brain-computer interfaces not only possible, but possibly simple. This will be an amazing boon to the elderly, others who have degenerative problems, and probably everyone else. At that point however, where does an individual's mind stop, and legally-accessible file storage begin?
I believe the slippery slope of both these arguments starts at this point, deciding where the demarcation of self-incrimination is. What we decide as a society over this argument will have a significant affect on how our ultimate future will go.
Yes! There are still smart people in the justice system who will make the right decision no matter who they're pissing off. My hat's off to you, Judge Tjoflat!
P.S. More people should know about this decision and the judges!
The analogy to a combination for a safe seems very apt, I've forgotten: what is the precedent in such situations? Have people been forced to give up the combination for a safe in court before?
Imagine if you stored a murder weapon in a safe. A search warrant will almost always open a safe (either by voluntary capitulation or by force).
There has been a lot of debate over whether a court should have to issue a specific search warrant just for a safe, or whether a search warrant for your property is enough to allow them to open such. The authorities always attempt to apply a search warrant for your house to mean your safe as well. You'd need some kind of pre-emptive action to try to stop that, and even then, good luck.
What is the difference between an encrypted hard drive, and one filled from /dev/random or the like? If I fill a hard drive with cosmic noise, can I be face consequences for not being able to decrypt it?
Nothing - my personal opinions aside, the difference seems to be if the prosecution has enough evidence to convince a judge that a specific piece of suspected evidence is contained in that encrypted data.
The court decision even addresses this - that there is no way to tell whether the drive is full of random data or real files once decrypted, and the government has not shown they are looking for a specific information - they are basically going on a fishing expedition saying "make him decrypt his drive because we think we'll find bad stuff on it"..... that's different than "Make him decrypt his drive because the file we gave him in the sting operation is strongly believed to be sitting on his drive, because the undercover officer saw him load it onto the laptop right before we arrested him". In this case, the court ordering the guy to decrypt the drive is reasonable. The devil is in the details it seems... the details are everything.
They absolutely can't just bust down your door and demand your decryption keys.... the court seems to have addressed that.
Can't the investigators get a warrant to spy on the suspect? They then install a bunch of spyware on the machine and in the suspect's home and on the suspect's internet connection.
In plain English: Does this mean an encrypted hard drive CANNOT be decrypted by law enforcement and the contents of the drive cannot be used in court to convict?
> In plain English: Does this mean an encrypted hard drive CANNOT be decrypted by law enforcement and the contents of the drive cannot be used in court to convict?
Not exactly. It means that the defendant does not (currently) have to provide the decryption key in cases where law enforcement has had no luck accessing the volume via other means.
Not all encryption schemes are created equal, and in many cases, law enforcement will attempt to circumvent or retrieve the key otherwise (i.e. volatile memory, disk controllers, etc).
My Objections Re Judicial Or Legislative
Constraints On Cryptology In A First /
Fourth / Fifth Amendment Domain:
The Idioglossia Paradigm
The following all occurs in San Francisco.
Imagine that Alice, a native speaker of english,
has devised a private spoken language,
which is grammatically and linguistically rich,
robust, and functionally complete, and which
also is completely indecipherable and
"un-analysable" to others by any means.
Assume that no one, without Alice's cooperation,
can definitively ascertain if she has taught
anyone else to speak or understand her language.
1. May Alice legitimately be constrained from
(or sanctioned for) expressing herself in this language?
2. If a communication by Alice in this language
has been audio-recorded, under what condition
may she legitimately be compelled to translate
the recording?
3. If the communication of item #2 has been
rendered -- or even originally produced --
in a faithful phonetic written form on a
single paper copy, under what condition may
Alice legitimately be compelled to translate it?
4. If the single copy of #3 is instead digital,
produced in a manner such that nothing about
its location, file-name, etc. imply anything
about the content of the communication, then
under what condition may Alice legitimately be
compelled to translate it?
5. Now imagine another person, Carol,
an "idiot savante", with idioglossic capability
which superficially seems equivalent to Alice's.
However, Carol's case is different, in that she
has the mental ability to perform the most
advanced and secure key-generation, encryption,
and decryption without artificial aids.
Carol's talent is so profound, that her
encrypted-from-english speech -- and her
comprehension of any received communication which
has been thus encrypted -- occurs in real-time,
and is indistinguishable from the naturalistic
communication of a speaker of some unknown
language (e.g. Alice).
Are the answers to items #1-through-#4 any
different in Carol's case?
6. Suppose that Ted purchases a new, blank,
never-formatted hard-drive, formats it,
creates a top-level directory named "Porn",
and three subordinate directories named
"Adults","Teens", and "Even Younger",
and in the last creates a subordinate directory
named "Screamed So Loud, I Had To Wear Hearing
Protection". Into this directory he creates --
eiher copied or "de novo" --
a file named "I Got This From Alice.mpg.pgp"
and one named "I Got This From Carol.mpg.pgp".
Ted then purchases a new laptop computer,
and replaces its single hard-drive with
the one containing those files.
Ted then proceeds quickly to a nearby place,
where he is detained and the computer examined,
and the the presence of the files is discerned
by the examining authority. Forensic
examination of the contents is fruitless.
IANAL, but I believe that it can reqasonably
be said that Ted has committed no illegal act
in arriving at this moment.
What can legitimately be compelled of any of
the three named parties?
7. Ted is suspected of having child-porn on the
disk, and is arrested. From the moment of his
arrival at the place where is was originally
detained,until the moment when a court orders
Ted to render the files intelligible, Ted has
communicated nothing to anyone except the
bare minimum which is legally required
(name, etc.).
The "government" has expended enormous effort
and expense in this entire matter. At this point
Ted complies with the court's order. (IANAL,
but I believe that the exact manner in which he
does this is irrelevant to the coming question.)
The contents of the files are shown to be
nothing but the most scatalogical, vile,
horrific, vituperative, and scurrilous written
characterizations of all of the individuals --
by name -- involved in Ted's detention, arrest,
prosecution and trial, including any judge(s) involved.
From the perspective of knowing nothing of
Ted's intentions or actions before the
examination of his computer -- and nothing after
except what was apparent to all involved
without his cooperation --
can Ted reasonably be said to have violated any
laws? Are there any charges which are likely
to be sustained, assuming adequate and competent
defense counsel?
Interesting questions, to which I shall attempt brief, (but necessarily superficial) replies. However, I'm going to go on general principles rather than 9th circuit precedent, California law, or rules of the court of the City and County of San Francisco, for the simple reason that I am not willing to spend hours checking them
Alice
If we stipulate the existence of Alice's language with the characteristics you describe, it's hard to see how it could be beyond any sort of analysis - but we'll examine that in more detail with Carol.
1. Yes. Alice being a native speaker of English, the court can demand that her testimony, if any, be in the same language as that of the proceedings.
2. Where she is a material witness testifying under oath with a grant of immunity, and there is reason to believe that the recorded speech is material to the proceedings - eg if she made a speech in her private language, and then remarked in English upon the subject of her speech.
3, 4 - likewise, insofar as she is capable. 2, 3, & 4 are all types of Funniest Joke in the World problems: if the communication is recorded in any form such that a person can understandably repeat it to Alice without themselves understanding the content, then the onus is on Alice to interpret the meaning for the court. (http://en.wikipedia.org/wiki/The_Funniest_Joke_in_the_World)
Carol, the human encryption engine
My understanding is that Carol also speaks English; that being the case, the same answers. Carol's lack of insight into her linguistic/cryptographic facility is irrelevant; after all, most people speak fluently in their native language without necessarily being able to analyze how. Illiterate people can't articulate rules of grammar but can still talk; likewise, one can toss a ball reliably without knowing the first thing about calculus or mechanics. This is a Chinese Room type of problem; unlike Searle, I don't think there needs to be an identifiable seat of consciousness. (http://en.wikipedia.org/wiki/Chinese_room) Like Hofstadter, courts are concerned with capacity and compliance, rather than epistomological understanding. It is enough that Carol be able to consistently exercise her talent on demand. There's a parallel to this situation with claims of facilitated communication for autistic or otherwise incommunicative people; some cases have fallen apart dramatically in court when the claims of interpretative ability were proved unreliable, though not before some defendants had their lives ruined with false accusations of abuse.
Ted
6. I'm unclear on what basis Ted was detained and his computer examined, and a defense attorney would certainly start by attempting to suppress such evidence if it was obtained via an illegal search. With a grant of immunity, one could compel from any of the three testimony about what contact had occurred between them, if any (eg whether Alice has ever met Ted or given anything to him), and likewise a good-faith attempt at 'translating' the PGP file - eg Carol might be able to decrypt it given a lucky guess at the key, if it were absurdly insecure.
7. If Ted is suspected and tried of possessing child porn based solely on the suggestive folder names, and a judge found no reason to suppress, then he would likely be acquitted since the naming of the folders was not done under oath. With no testimony on Ted's part, his defense counsel could argue that there are many possible reasons to engage in such activity. Perhaps Ted plans to create a fictional story about a child pornographer and intends to employ the laptop as a prop - the sort of prop that is often employed in movie and TV shows about police investigations. Perhaps Ted merely has a warped sense of humor. Perhaps he aims to entrap a child pornographer by connecting the laptop to the internet and seeing who downloads the files. Perhaps the files do contain video...of Ted's face as he imagines pornographic situations. The existence of so many possibilities casts a reasonable doubt on the supposition that the folder names are necessarily descriptive of their content.
But now take the file content as the hostile characterizations of the law enforcement personnel that you describe. This is potentially incriminating; not because it speaks ill of the legal establishment, but because we must ask how probable it is that the identity of everyone involved in Ted's legal case was foreseeable. If Ted lives in a small town with one cop, one sheriff, one prosecutor, one defense lawyer, one clerk of court, and one judge, and had some reasonable expectation of detention and search - eg a history of poor relations with the town's sole cop - then the involvement of these individuals with Ted's criminal prosecution was highly foreseeable, and it is quite plausible that Ted wrote his hostile prose as a description of what he expected to occur that day, which suspicions have been vindicated by events. In that case, the evidence would probably be exculpatory insofar as it demonstrated Ted's prior belief that he was going to be the victim of legal harassment, albeit in perverse fashion.
But since this episode takes place in San Francisco, a city of about 700,000 people, the chances that Ted could accurately predict the identity of everyone connected with his arrest and prosecution in advance are very low indeed. Ted would need to have either superhuman powers of foresight, or introduce additional evidence to show why that combination of individuals was rationally predictable - proof of corruption in the local legal establishment, or an enormously detailed knowledge of administrative scheduling and procedure in multiple different offices - police station, jail, DA's office, Sheriff's office, and Court. The probability of accurate foresight here is so low that a jury might infer Ted had encrypted multiple streams of information in advance and selected an appropriate key during trial: memorizing a list of all law enforcement personnel in advance, supplying a key representing the ordinal placement of the arresting officer Ted in an encrypted version that list, and using a decryption process that retrieved the name of the officer and substitutes it into a generic 'vile characterization' written and encrypted in advance. This would require a truly impressive memory for multiple long lists, but such feats of memory are not superhuman; there are professional entertainers who specialize in such feats and can explain or demonstrate them.
The probability that Ted had the time, capability and inclination to do this is demonstrably higher than the probability that he was clairvoyant or an incredibly good guesser. If, as seems possible, the specificity of the document rested on a trick of memorization and a selective decryption mechanism that could yield multiple valid-seeming plaintext values in response to multiple different keys, then a jury would have to weigh the possibility that the decryption process was intended to be obfuscatory rather than revelatory, and that there might well be a 'meta-key' that decrypted the files into video of child porn for Ted's illicit enjoyment. In other words, a perverse form of steganography that overtly identifies its significant content but frustrates its easy retrieval. Obviously this is all subject to the limits of information theory - if the size of the scurrilous prose plaintext file and the size of the encrypted files were both small and close - only a few kilobytes in length, say - then the probability that the encrypted files also contained contraband video would be correspondingly small. If the encrypted files were several gigabytes each, it would be entirely possible for them to include video, scurrilous plaintext, and multiple lists of names.
There would still, arguably, be a reasonable doubt about the nature of the still-hidden data in the file (if any), but the jury would be entitled to take these factors into account when assessing the defendant's credibility. On these facts, I think that Ted would have to be acquitted on charges of possessing child porn, as its existence could not be established beyond a reasonable doubt - if he were convicted, an Appeal court would probably free him. On the other hand, and subject to the estimable probabilities described above, I think he could be convicted of obstruction of justice for wilful frustration of the Court's fact-finding function - not by declining to comply, but by complying in such a manner as to strain the bounds of credibility.
this is the key to this case and reasonings behind such a response from court:
> The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents.
Government had inexperienced prosecutor building case and the judge, rightfully responded to prosecutor request: in order to get the content that prosecutor wants, they need keys. By not revealing keys defendant is using 5th. Everything seems fine, other than I am sure this case will come back and this time prosecutor will wont the keys not the content. This mistake, I think rest assured, will not happen from Prosecutor's part again in this or any other cases.
---
below is what I started typing but when I read the case again it stroked me as of why we dealing with such a decision. I decided to leave it instead of deleting if you want to read anyways:
First and foremost: I use TrueCrypt. Its amazing, simple, and it works. Just make sure, when converting existing partition, you use at least "3-pass wipe" mode since todays hard disk drives can keep "second layer" of magnetized data you were converting for months giving law enforcement access to your pure data pre-endryption. In my example, I have about 10TB across 8 HDD with my CAD/3DStudio Max work. I also have hours of digital-cam material from 2003 where 15 minutes of recording took 2TB of avi files and I never cared to convert.
Said that, I think in this case the court was terribly wrong and defendant should play lottery first thing he leaves the jail.
> First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind
say what? they asked him for password he knows. He doesnt want to give it out. Court agrees saying that this would require to force defendant to use his mind and reveal information he keeps there and that noone else can access. May I know any court case or any case where defendant brain would not be used?? I dont honestly find a difference between asking him for password and asking him for anything else in any case proceedings. He is unwilling to comply with court, bottom line.
> Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.
sure, but if the Government has any other evidence against defendant, the burden of proof should clearly shift to defendant. If, for example Government has ISP logs of tons of torrent data downloaded by defendant router, one can fairly assume that illegal files are stored there. If defendent is not willing to "open the safe" by releasing the key, he should be found guilty by withholding the evidence. -- Just open the damn vault and show those idiots from the Govt & Co how stupid they really are!
rest assured, will not happen from Prosecutor's part
again in this or any other cases
When asking for something, such as a key, the prosecutor has to have at least a reason behind the request (like retrieving the contents of that safe, or hard-disk).
Also, if the legal system is so dumb about semantics such as this, there's now a powerful precedent anyway.
He is unwilling to comply with court, bottom line.
But he has the right to not comply with the court, as then he would incriminate himself. The prosecutor first has to prove that the defendant is actually guilty, otherwise that's just fishing for evidence and crimes committed which may or may not exist. And that's exactly what the 5th Amendment is about.
If, for example Government has ISP logs of
tons of torrent data downloaded by defendant router,
one can fairly assume that illegal files are stored there
That's just stupid. I download everything big from torrents, like Ubuntu Linux distributions ... should that give anybody the right to inspect my hard-drive?
[+] [-] ChuckMcM|14 years ago|reply
While I hate evil doers just as much as the next person I dislike the loss of civil liberties even more.
[+] [-] turing|14 years ago|reply
[+] [-] ctdonath|14 years ago|reply
Rag doll: so long as they can manipulate your uncooperative unresisting body to do something (apply thumbprint, get DNA sample), they can order you to cooperate. They cannot, however, compel you to do something which they otherwise have no case without.
Sawz-all: so long as getting into a safe (or whatever) is just a normal matter of time and money, they can order you to open it. If, however, "opening" an encrypted volume or some such by brute force will take something on the order of heat death of the universe, and otherwise they have no case, you can stay silent.
[+] [-] monochromatic|14 years ago|reply
[+] [-] derekp7|14 years ago|reply
[+] [-] nokcha|14 years ago|reply
See Footnote 19: "If in the case at hand, for example, the Government could prove that it had knowledge of the files encrypted on Doe’s hard drives, that Doe possessed the files, and that they were authentic, it could compel Doe to produce the contents of the files even though it had no independent source from which it could obtain the files."
[+] [-] rosser|14 years ago|reply
If so, that sounds spot-on correct to my (admittedly, lay and NAL) understanding of the issues.
[+] [-] jrockway|14 years ago|reply
[+] [-] jrs235|14 years ago|reply
[+] [-] smsm42|14 years ago|reply
[+] [-] elithrar|14 years ago|reply
There's no such thing as 100% proof. It's about being "beyond reasonable doubt", and as 'weaselly' as that might sound, it's true. If they intercept data coming over the wire, to your PC, and you have been the only person home and the chances that someone would plant a few terabytes of illegal data on your drive at those precise times...
[+] [-] jrs235|14 years ago|reply
In the case of US vs Fricosu, merely having the documents the government says exist on the encrypted drive does not in itself constitute a crime (like child pornography would/does in the case mentioned in this story).
So, if we take a step back and ignore that the person who holds the key to the "safe" (the decryption key to the hard drive) is the defendant and pretend it is you or I that hold the key, then you and I could be compelled to decrypt the drive and disclose its contents or face contempt of court. Now if I was forced by the court to decrypt the drive,prior to doing so I would ask (and require) immunity from any and all evidence found that would/could incriminate me. It also appears the government is aware of a document or documents that exist and have certain contents... this is all they have a warrant for and are asking for.
Change the scenario. The police have reason to believe that there is a gun in a safe that I own that was used in a murder. The have enough evidence to obtain a search warrant and compel me to open the safe. I didn't commit the murder but supposed someone else did. The force compels me to open my safe. Me owning the safe or the gun in itself is not a crime and is not incriminating. Perhaps I have a stash of drugs in my safe too. Prior to opening the safe I will ask for (and require) immunity for any crimes that stem from obtaining or finding any other evidence not listed on their search warrant. I'm sure there will be some back and forth on this as to limit what degree of immunity I actually receive... but believe you me, I will make certain any thing related to the drugs I know exist in there which is completely unrelated to searching for and obtaining a gun. Nothing wring with being compelled to opening the safe.
Take the above scenario with one small change I (or you) the owner of the safe (that contains the gun, or so the government believes) is person accused of the murder. I will still ask for and go after immunity for anything not related to the current case. Owning the safe, and the gun, in itself is not a crime so unlocking the safe and allowing for the search is not incriminating in itself. The government still needs to build a case that I pulled the trigger on the gun and murdered someone (not that I merely knew that I had A gun or that I possessed a gun that I didn't know was used in the commission of a crime).
The sticky point is, how can the government prove that a person knows the combination to a safe (or decryption key for a hard drive)? This is what the judge and court is trying to determine in the Fricosu case. Can she and does she know the key? And if she refuses to unlock it or says she doesn't know how can they "prove" she's lying?
[+] [-] wladimir|14 years ago|reply
Is there any rule that data on your drive should be somehow sensible and decryptable to human-understandable information, using keys that you have in your head?
[+] [-] DanBC|14 years ago|reply
Thus, they're likely to have lots of random data strewn around their drives.
I have no idea what would happen if you coughed up two keys which unencrypted 30% of that random data; what would happen with the rest?
[+] [-] newbusox|14 years ago|reply
The issue here is child pornography: the would-be defendant was suspected of having child pornography on various hard drives which were encrypted. The court states that the actual contents of the hard drive are themselves not testimonial—that is, they are not covered by the Fifth Amendment and, if the government had access to the hard drives, they could present whatever was incriminating on them into evidence. So the issue is whether the act of producing the documents is a testimonial act and therefore covered by the Fifth Amendment
The court concludes that the act of production is a testimonial act because, one, the testimony was not a "foregone conclusion." This holding is based on a case called Fisher v. United States, in which the Supreme Court stated that it was not testimonial to hand over certain papers that might have incriminating evidence because conceding that documents existed, that you had control over the documents, or that they were in your possession was not incriminatory given the circumstances of that case. Under the "foregone conclusion" doctrine, the government knew of the existence and location of these papers so the production of the papers added nothing or little to the government's information. If the government did NOT know that documents existed, they could not compel a would-be defendant to reveal the documents.
Second, and most importantly, the court concluded that decrypting the documents would "use the contents of [the would-be defendant]'s mind" because "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." It's again important to note that this is a child pornography case: possession of child pornography is a crime, so if the would-be defendant here provided a decryption key, this would be tantamount to him admitting that he possessed the hard drive and had access to the files within it—that alone would constitute a crime if the files were found to be child pornography. This is therefore what the court later refers to as an "implied factual statement" and the Fifth Amendment protects this. Although the court also suggests that providing a decryption key might be like providing a combination (and therefore be admissible for Fifth Amendment protection on other grounds), it unfortunately devotes very little space to this discussion—and this seems to be the really big issue here.
The case therefore leaves several unanswered questions: this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer? What if the foregone conclusion doctrine wasn't applicable—would the conclusion here be the same (most of the opinion is actually devoted to this discussion, which is less broadly applicable because, if the police know of the existence of specific files on hard drive, this doctrine is inapplicable)?
Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system.
In conclusion: the applicability of this case to future cases is unclear, so, for those that want this result, I don't really think this is a "slam dunk." There will likely be many future cases further developing this doctrine. As such, right now, it's very difficult to discuss the merits of the court's holding on the "decryption is testimony" argument (which, in my mind, is the most important) in a general sense, since the reasoning here seems very specific to the facts of case.
[+] [-] drostie|14 years ago|reply
Here's the sticking point for me: it's perhaps overly pedantic, but I want to view the world honestly, and there are some great points of absurdity here. (I always like the absurd, and the ways our world is otherworldly.)
The problem is that much of our approach to information is creative, and we need to start thinking in those terms.
If you have a JPEG of a murder on your unencrypted hard drive, that's not actually a photograph; it's a set of magnetic pointings which can with certain hardware be used to produce a photograph. If you think about it, that also applies to writing on paper, or colored splotches encoding an image into a physical photograph. Those require a creative attempt to produce meaning. The meaning can be off if the creative attempt is not followed through correctly. The easy way to see this is to imagine someone systematically using a common word in an uncommon way -- Feynman for example was once, on the Challenger commission, chasing down memos which sounded like NASA had been actively irresponsible, but instead it turned out to be a figure of speech they'd adopted for a certain phase of their construction. Or imagine that our demented individual really does have a very detailed, lifelike photograph which appears to document his murder of another, but in fact the "murdered" girl is a still-alive actress who was paid to appear in these photographs; the "blood" and such is very convincing but is ultimately a prop.
So the meaning can be off, if the creative act goes awry. I'm using this to underscore that you have to think, at some level, about that recreation of semantics from the physical fact.
Let me be clear: I don't think this is a barrier to investigation usually. I think it's clear that we expect a sort of 'normal hardware' that allows us to recreate semantics. The photographs in this safe, when viewed by a normal person in normal lighting, would show an image of the defendant committing a murder -- and if they want to say that this was all theatrically staged, they may produce the actress or others involved in the production. By that account, photographs inside of a safe are also governed by this principle: even if their physical location happens to be remote and inaccessible, reproducing the image from the photograph is as simple as just looking at it. The photograph really contains the image, up to a 'trivial' semantics.
Now bring this back to your other example of an encrypted disk storing child pornography. That is a nontrivial semantic inflation: you are literally asking the defendant to create child pornography for the purposes of the case. In some sense perhaps you're just saying "create whatever this drive's contents are," with the understanding that the police is going to look through it for child pornography -- in that phrasing, it's more clear that this pornography might not actually exist, etc. -- so there is perhaps a way to comply without generating child pornography at the judge's request.
But still, that's a little mad and absurd in the wonderful way that our world can be otherworldly. It opens up all sorts of questions which I have no clue how to answer. Decryption, like most computation, is a creative act. To demand decryption is to demand creation.
I quoted the above in particular because I really don't care about the "enormous problem for our justice system." Like, the fact that we don't have embedded realtime GPS trackers installed in our spines is an "enormous problem for our justice system" because it makes it so tremendously hard to figure out whether our alibis are true or false. Screw that sort of thinking. Whatever caused the investigators to think this individual was manufacturing or downloading kiddie porn should have been enough to convict. This shouldn't be a gray-matter area. "We just cracked down on this peer-to-peer kiddie porn program, we saw that you were using it to share many images, here are the filenames that the defendant's computer was sharing at the time we busted into his house with a warrant." (Are the police allowed to download such things? Probably. "Here are just a couple of the images we downloaded from him," too, then.) So, if they don't have a case and are fishing through the hard drive to try to make one, that's more or less explicitly what the Fifth Amendment is supposed to guard against: "we don't know your exact sins but we know you're a sinner so damn it, confess!"
But still, the sticking point is the glorious absurdity: "Mr. Doe, we have reason to believe that if you say the magic word, your computer will manufacture child pornography. We demand that you say the magic word, so that we know whether this is true." How will we decide that issue in the face of its pure and present absurdity?
[+] [-] Timothee|14 years ago|reply
If someone is asked to decrypt their drive for a murder case, could they then invoke the Fifth Amendment on the basis that they might have child pornography? Can the Fifth Amendment protect you on an unrelated crime that you mention without either admitting to it?
[+] [-] andylei|14 years ago|reply
as it should be! i think that neither "all decryption is testimonial" or that "no decryptions are testimonial" are good policies. imho, decryptions should be treated in the same manner as other paper based evidence production requests: most of the time, the government cannot compel you to produce evidence testifying against you, but there are certain exceptions ("foregone conclusions" included).
> What if this was a murder case and the defendant had stored notes about his murder on the computer?
i don't think you're interpreting the "foregone conclusion" doctrine correctly. what it means is that keys, passwords, decryptions, etc cannot be used for the police to go on fishing expeditions for evidence. if they know you have incriminating evidence and can show that, then they can compel the production of that evidence. this is something that happened in US v Fricosu, in which Fricosu actually was compelled to decrypt. note that this ruling, which does not compel decryption, is entirely consistent with US v Fricosu
[+] [-] unknown|14 years ago|reply
[deleted]
[+] [-] nextparadigms|14 years ago|reply
[+] [-] aspensmonster|14 years ago|reply
Indeed, the judge could grant immunity to the defendant, thereby requiring him under law to "testify" his private key, but then you don't have a case to prosecute. I wrote about this more thoroughly here http://aspensmonster.com/2012/01/26/on-private-keys-and-the-.... I'm curious to know what others think about all of this but lack the time to read through tens of pages of comments at the moment :P
[+] [-] aperrien|14 years ago|reply
Further along that line of thinking, it may become possible to change what a person is thinking by suppressing or exciting different regions within the brain. At that point, is punishment still legal if the government can simply change what a perpetrator thinks? For example, changing a con artist's mind so they no longer think of using their persuasive skills to con people. On the surface, isn't that what prison and the penal code is about anyway?
I believe we need to concern ourselves greatly about this, because we are now on the cusp of technologies that will make building brain-computer interfaces not only possible, but possibly simple. This will be an amazing boon to the elderly, others who have degenerative problems, and probably everyone else. At that point however, where does an individual's mind stop, and legally-accessible file storage begin?
I believe the slippery slope of both these arguments starts at this point, deciding where the demarcation of self-incrimination is. What we decide as a society over this argument will have a significant affect on how our ultimate future will go.
[+] [-] jakeonthemove|14 years ago|reply
P.S. More people should know about this decision and the judges!
[+] [-] macrael|14 years ago|reply
[+] [-] unknown|14 years ago|reply
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[+] [-] shingen|14 years ago|reply
There has been a lot of debate over whether a court should have to issue a specific search warrant just for a safe, or whether a search warrant for your property is enough to allow them to open such. The authorities always attempt to apply a search warrant for your house to mean your safe as well. You'd need some kind of pre-emptive action to try to stop that, and even then, good luck.
[+] [-] recursive|14 years ago|reply
[+] [-] dedward|14 years ago|reply
The court decision even addresses this - that there is no way to tell whether the drive is full of random data or real files once decrypted, and the government has not shown they are looking for a specific information - they are basically going on a fishing expedition saying "make him decrypt his drive because we think we'll find bad stuff on it"..... that's different than "Make him decrypt his drive because the file we gave him in the sting operation is strongly believed to be sitting on his drive, because the undercover officer saw him load it onto the laptop right before we arrested him". In this case, the court ordering the guy to decrypt the drive is reasonable. The devil is in the details it seems... the details are everything.
They absolutely can't just bust down your door and demand your decryption keys.... the court seems to have addressed that.
[+] [-] DanBC|14 years ago|reply
[+] [-] AndrewDucker|14 years ago|reply
[+] [-] darxius|14 years ago|reply
[+] [-] elithrar|14 years ago|reply
Not exactly. It means that the defendant does not (currently) have to provide the decryption key in cases where law enforcement has had no luck accessing the volume via other means.
Not all encryption schemes are created equal, and in many cases, law enforcement will attempt to circumvent or retrieve the key otherwise (i.e. volatile memory, disk controllers, etc).
[+] [-] Intermernet|14 years ago|reply
[+] [-] dedward|14 years ago|reply
The issue is the defendants rights and responsibilities in helping them figure that out.
[+] [-] nusrat|14 years ago|reply
The following all occurs in San Francisco. Imagine that Alice, a native speaker of english, has devised a private spoken language, which is grammatically and linguistically rich, robust, and functionally complete, and which also is completely indecipherable and "un-analysable" to others by any means. Assume that no one, without Alice's cooperation, can definitively ascertain if she has taught anyone else to speak or understand her language.
1. May Alice legitimately be constrained from (or sanctioned for) expressing herself in this language?
2. If a communication by Alice in this language has been audio-recorded, under what condition may she legitimately be compelled to translate the recording?
3. If the communication of item #2 has been rendered -- or even originally produced -- in a faithful phonetic written form on a single paper copy, under what condition may Alice legitimately be compelled to translate it?
4. If the single copy of #3 is instead digital, produced in a manner such that nothing about its location, file-name, etc. imply anything about the content of the communication, then under what condition may Alice legitimately be compelled to translate it?
5. Now imagine another person, Carol, an "idiot savante", with idioglossic capability which superficially seems equivalent to Alice's. However, Carol's case is different, in that she has the mental ability to perform the most advanced and secure key-generation, encryption, and decryption without artificial aids. Carol's talent is so profound, that her encrypted-from-english speech -- and her comprehension of any received communication which has been thus encrypted -- occurs in real-time, and is indistinguishable from the naturalistic communication of a speaker of some unknown language (e.g. Alice).
Are the answers to items #1-through-#4 any different in Carol's case?
6. Suppose that Ted purchases a new, blank, never-formatted hard-drive, formats it, creates a top-level directory named "Porn", and three subordinate directories named "Adults","Teens", and "Even Younger", and in the last creates a subordinate directory named "Screamed So Loud, I Had To Wear Hearing Protection". Into this directory he creates -- eiher copied or "de novo" -- a file named "I Got This From Alice.mpg.pgp" and one named "I Got This From Carol.mpg.pgp". Ted then purchases a new laptop computer, and replaces its single hard-drive with the one containing those files.
Ted then proceeds quickly to a nearby place, where he is detained and the computer examined, and the the presence of the files is discerned by the examining authority. Forensic examination of the contents is fruitless. IANAL, but I believe that it can reqasonably be said that Ted has committed no illegal act in arriving at this moment.
What can legitimately be compelled of any of the three named parties?
7. Ted is suspected of having child-porn on the disk, and is arrested. From the moment of his arrival at the place where is was originally detained,until the moment when a court orders Ted to render the files intelligible, Ted has communicated nothing to anyone except the bare minimum which is legally required (name, etc.).
The "government" has expended enormous effort and expense in this entire matter. At this point Ted complies with the court's order. (IANAL, but I believe that the exact manner in which he does this is irrelevant to the coming question.)
The contents of the files are shown to be nothing but the most scatalogical, vile, horrific, vituperative, and scurrilous written characterizations of all of the individuals -- by name -- involved in Ted's detention, arrest, prosecution and trial, including any judge(s) involved.
From the perspective of knowing nothing of Ted's intentions or actions before the examination of his computer -- and nothing after except what was apparent to all involved without his cooperation -- can Ted reasonably be said to have violated any laws? Are there any charges which are likely to be sustained, assuming adequate and competent defense counsel?
[+] [-] anigbrowl|14 years ago|reply
Alice If we stipulate the existence of Alice's language with the characteristics you describe, it's hard to see how it could be beyond any sort of analysis - but we'll examine that in more detail with Carol.
1. Yes. Alice being a native speaker of English, the court can demand that her testimony, if any, be in the same language as that of the proceedings.
2. Where she is a material witness testifying under oath with a grant of immunity, and there is reason to believe that the recorded speech is material to the proceedings - eg if she made a speech in her private language, and then remarked in English upon the subject of her speech.
3, 4 - likewise, insofar as she is capable. 2, 3, & 4 are all types of Funniest Joke in the World problems: if the communication is recorded in any form such that a person can understandably repeat it to Alice without themselves understanding the content, then the onus is on Alice to interpret the meaning for the court. (http://en.wikipedia.org/wiki/The_Funniest_Joke_in_the_World)
Carol, the human encryption engine My understanding is that Carol also speaks English; that being the case, the same answers. Carol's lack of insight into her linguistic/cryptographic facility is irrelevant; after all, most people speak fluently in their native language without necessarily being able to analyze how. Illiterate people can't articulate rules of grammar but can still talk; likewise, one can toss a ball reliably without knowing the first thing about calculus or mechanics. This is a Chinese Room type of problem; unlike Searle, I don't think there needs to be an identifiable seat of consciousness. (http://en.wikipedia.org/wiki/Chinese_room) Like Hofstadter, courts are concerned with capacity and compliance, rather than epistomological understanding. It is enough that Carol be able to consistently exercise her talent on demand. There's a parallel to this situation with claims of facilitated communication for autistic or otherwise incommunicative people; some cases have fallen apart dramatically in court when the claims of interpretative ability were proved unreliable, though not before some defendants had their lives ruined with false accusations of abuse.
Ted 6. I'm unclear on what basis Ted was detained and his computer examined, and a defense attorney would certainly start by attempting to suppress such evidence if it was obtained via an illegal search. With a grant of immunity, one could compel from any of the three testimony about what contact had occurred between them, if any (eg whether Alice has ever met Ted or given anything to him), and likewise a good-faith attempt at 'translating' the PGP file - eg Carol might be able to decrypt it given a lucky guess at the key, if it were absurdly insecure.
7. If Ted is suspected and tried of possessing child porn based solely on the suggestive folder names, and a judge found no reason to suppress, then he would likely be acquitted since the naming of the folders was not done under oath. With no testimony on Ted's part, his defense counsel could argue that there are many possible reasons to engage in such activity. Perhaps Ted plans to create a fictional story about a child pornographer and intends to employ the laptop as a prop - the sort of prop that is often employed in movie and TV shows about police investigations. Perhaps Ted merely has a warped sense of humor. Perhaps he aims to entrap a child pornographer by connecting the laptop to the internet and seeing who downloads the files. Perhaps the files do contain video...of Ted's face as he imagines pornographic situations. The existence of so many possibilities casts a reasonable doubt on the supposition that the folder names are necessarily descriptive of their content.
But now take the file content as the hostile characterizations of the law enforcement personnel that you describe. This is potentially incriminating; not because it speaks ill of the legal establishment, but because we must ask how probable it is that the identity of everyone involved in Ted's legal case was foreseeable. If Ted lives in a small town with one cop, one sheriff, one prosecutor, one defense lawyer, one clerk of court, and one judge, and had some reasonable expectation of detention and search - eg a history of poor relations with the town's sole cop - then the involvement of these individuals with Ted's criminal prosecution was highly foreseeable, and it is quite plausible that Ted wrote his hostile prose as a description of what he expected to occur that day, which suspicions have been vindicated by events. In that case, the evidence would probably be exculpatory insofar as it demonstrated Ted's prior belief that he was going to be the victim of legal harassment, albeit in perverse fashion.
But since this episode takes place in San Francisco, a city of about 700,000 people, the chances that Ted could accurately predict the identity of everyone connected with his arrest and prosecution in advance are very low indeed. Ted would need to have either superhuman powers of foresight, or introduce additional evidence to show why that combination of individuals was rationally predictable - proof of corruption in the local legal establishment, or an enormously detailed knowledge of administrative scheduling and procedure in multiple different offices - police station, jail, DA's office, Sheriff's office, and Court. The probability of accurate foresight here is so low that a jury might infer Ted had encrypted multiple streams of information in advance and selected an appropriate key during trial: memorizing a list of all law enforcement personnel in advance, supplying a key representing the ordinal placement of the arresting officer Ted in an encrypted version that list, and using a decryption process that retrieved the name of the officer and substitutes it into a generic 'vile characterization' written and encrypted in advance. This would require a truly impressive memory for multiple long lists, but such feats of memory are not superhuman; there are professional entertainers who specialize in such feats and can explain or demonstrate them.
The probability that Ted had the time, capability and inclination to do this is demonstrably higher than the probability that he was clairvoyant or an incredibly good guesser. If, as seems possible, the specificity of the document rested on a trick of memorization and a selective decryption mechanism that could yield multiple valid-seeming plaintext values in response to multiple different keys, then a jury would have to weigh the possibility that the decryption process was intended to be obfuscatory rather than revelatory, and that there might well be a 'meta-key' that decrypted the files into video of child porn for Ted's illicit enjoyment. In other words, a perverse form of steganography that overtly identifies its significant content but frustrates its easy retrieval. Obviously this is all subject to the limits of information theory - if the size of the scurrilous prose plaintext file and the size of the encrypted files were both small and close - only a few kilobytes in length, say - then the probability that the encrypted files also contained contraband video would be correspondingly small. If the encrypted files were several gigabytes each, it would be entirely possible for them to include video, scurrilous plaintext, and multiple lists of names.
There would still, arguably, be a reasonable doubt about the nature of the still-hidden data in the file (if any), but the jury would be entitled to take these factors into account when assessing the defendant's credibility. On these facts, I think that Ted would have to be acquitted on charges of possessing child porn, as its existence could not be established beyond a reasonable doubt - if he were convicted, an Appeal court would probably free him. On the other hand, and subject to the estimable probabilities described above, I think he could be convicted of obstruction of justice for wilful frustration of the Court's fact-finding function - not by declining to comply, but by complying in such a manner as to strain the bounds of credibility.
[+] [-] joering2|14 years ago|reply
> The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents.
Government had inexperienced prosecutor building case and the judge, rightfully responded to prosecutor request: in order to get the content that prosecutor wants, they need keys. By not revealing keys defendant is using 5th. Everything seems fine, other than I am sure this case will come back and this time prosecutor will wont the keys not the content. This mistake, I think rest assured, will not happen from Prosecutor's part again in this or any other cases.
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below is what I started typing but when I read the case again it stroked me as of why we dealing with such a decision. I decided to leave it instead of deleting if you want to read anyways:
First and foremost: I use TrueCrypt. Its amazing, simple, and it works. Just make sure, when converting existing partition, you use at least "3-pass wipe" mode since todays hard disk drives can keep "second layer" of magnetized data you were converting for months giving law enforcement access to your pure data pre-endryption. In my example, I have about 10TB across 8 HDD with my CAD/3DStudio Max work. I also have hours of digital-cam material from 2003 where 15 minutes of recording took 2TB of avi files and I never cared to convert.
Said that, I think in this case the court was terribly wrong and defendant should play lottery first thing he leaves the jail.
> First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind
say what? they asked him for password he knows. He doesnt want to give it out. Court agrees saying that this would require to force defendant to use his mind and reveal information he keeps there and that noone else can access. May I know any court case or any case where defendant brain would not be used?? I dont honestly find a difference between asking him for password and asking him for anything else in any case proceedings. He is unwilling to comply with court, bottom line.
> Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.
sure, but if the Government has any other evidence against defendant, the burden of proof should clearly shift to defendant. If, for example Government has ISP logs of tons of torrent data downloaded by defendant router, one can fairly assume that illegal files are stored there. If defendent is not willing to "open the safe" by releasing the key, he should be found guilty by withholding the evidence. -- Just open the damn vault and show those idiots from the Govt & Co how stupid they really are!
[+] [-] bad_user|14 years ago|reply
Also, if the legal system is so dumb about semantics such as this, there's now a powerful precedent anyway.
But he has the right to not comply with the court, as then he would incriminate himself. The prosecutor first has to prove that the defendant is actually guilty, otherwise that's just fishing for evidence and crimes committed which may or may not exist. And that's exactly what the 5th Amendment is about. That's just stupid. I download everything big from torrents, like Ubuntu Linux distributions ... should that give anybody the right to inspect my hard-drive?[+] [-] shingen|14 years ago|reply