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Davian93
02-06-2012, 08:12 PM
http://www.wired.com/threatlevel/2012/02/forgotten-password/

Apparently she has been ordered to decrypt her laptop that MAY contain incriminating evidence...how does that compare to non-computer precedent (say like asking a defendant to produce a key/combination to a safe?)

Is it legit to say this isn't a 5th Amendment issue?

Sinistrum
02-06-2012, 08:18 PM
Typically speaking the 5th Amendment only attaches to speech, the most common being confessions or testifying in open court. Evidence obtained via warrant doesn't bring it into play. And as with all warrants, all they need is probable cause to justify the search or seizure, which is just a legal way of saying law enforcement has a good faith basis to believe that such a place, item, or person, MIGHT have evidence on them.

eht slat meit
02-06-2012, 08:18 PM
http://www.wired.com/threatlevel/2012/02/forgotten-password/

Apparently she has been ordered to decrypt her laptop that MAY contain incriminating evidence...how does that compare to non-computer precedent (say like asking a defendant to produce a key/combination to a safe?)

Is it legit to say this isn't a 5th Amendment issue?

No expert, nor even a wannabe here, but that doesn't _sound_ like a fifth amendment issue, because the right to gather evidence and subpoena witnesses is part of the legal process. Seems odd that they require someone to do what is effectively their job for them, however.

Davian93
02-06-2012, 08:27 PM
No expert, nor even a wannabe here, but that doesn't _sound_ like a fifth amendment issue, because the right to gather evidence and subpoena witnesses is part of the legal process. Seems odd that they require someone to do what is effectively their job for them, however.

That's the only issue I see with it to be honest. It'd be like if I had a bunch of paperwork in my house written in Mandarin. I shouldnt be in any obligation to translate that for law enforcement if they think it might put me in prison.

Sinistrum
02-06-2012, 08:38 PM
I sort of see it more like being compelled to give a sample of your blood in a DWI investigation via warrant, which is perfectly legal and happens all the time.

Davian93
02-06-2012, 08:44 PM
I sort of see it more like being compelled to give a sample of your blood in a DWI investigation via warrant, which is perfectly legal and happens all the time.

If I had a safe in my house, would I be required to give the combo/key?

Res_Ipsa
02-06-2012, 09:44 PM
http://www.wired.com/threatlevel/2012/02/forgotten-password/

Apparently she has been ordered to decrypt her laptop that MAY contain incriminating evidence...how does that compare to non-computer precedent (say like asking a defendant to produce a key/combination to a safe?)

Is it legit to say this isn't a 5th Amendment issue?

Wannabe here,

Ummm . . . mostly what Sini said, but why is the prosecution even having this issue? I just skimmed the article but if it was seized as evidence, then they can break the password themselves. I was under the impression most modern law enforcement divisions had computer crime divisions or access to FBI help. Sini being a prosecutor probably has more insight on this issue.

It is interesting though, and there may be a circuit decision out there that goes one way or the other. All her atty can do, now that the trial judge has ruled, is raise the issue on appeal.

Sinistrum
02-06-2012, 11:02 PM
So long as the warrant involved was specific enough to include turning over the key/combo, sure, I don't see why not.

GonzoTheGreat
02-07-2012, 03:34 AM
Ummm . . . mostly what Sini said, but why is the prosecution even having this issue? I just skimmed the article but if it was seized as evidence, then they can break the password themselves. I was under the impression most modern law enforcement divisions had computer crime divisions or access to FBI help. Sini being a prosecutor probably has more insight on this issue.
Breaking the password is of course always possible. But if it is a good one (not bloody likely, but possible) then it might take all the computer capacity in the entire world and longer than our planet is likely to continue existing. Which, I think you may understand, would be a bit impractical.

Still, I have some trouble seeing exactly what the reasoning of the court is, in this case:
A Colorado woman ordered to decrypt her laptop so prosecutors may use the files against her in a criminal case might have forgotten the password, the defendant’s attorney said Monday.
...
Ruling that the woman’s Fifth Amendment rights against compelled self-incrimination would not be breached, U.S. District Judge Robert Blackburn ordered the woman in January to decrypt the laptop.
If this judge has officially declared that the prosecution is not allowed to use the files against her, then the prosecution would seem to have no actual reason left to want her to testify against herself.
If the judge has declared that the woman has to testify against herself so that the prosecution can use the resulting evidence in a criminal case against her, then I do not see why this would not be an infringement of her Fifth Amendment rights.

So I am still rather puzzled by the legal logic of this case.

Evidence obtained via warrant doesn't bring it into play.
Then why isn't that used far more often?
Simply issue a warrant stating "tell us how you did the murder and where you hid the corpse" and lots of cases can be solved, apparently without violating 5th Amendment rights at all. And if someone does not cooperate, then he or she will be locked up for obstruction of justice until they do, of course.

Or, possibly, if the "tell us how" bit goes too far, even for activist judges, a simple "show us where the murder weapon is" would already do wonders.
Why is the police expected to do that kind of work, when simply using warrants on potential suspects would be far more efficient and just as legal?

Edited to add:
Davies had urged Judge Blackburn to order Fricosu to decrypt the hard drive, writing “that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”
This made me think of yet another potential problem for the prosecution: what if the evidence only exists in the mind of the suspect?
If someone works out in his or her head all the details of some fraudulent scheme, instead of having them in a spreadsheet on a computer, then the prosecution would want to have the contents of that mind. Thus, a warrant for a datadump of the suspect's mind should then be issued. And that, it seems would no more be a violation of rights than this one is.
In both cases they needed to let the prosecution make a case which it could not make if the suspect is not forced to cooperate.

Davian93
02-07-2012, 07:14 AM
Wannabe here,

Ummm . . . mostly what Sini said, but why is the prosecution even having this issue? I just skimmed the article but if it was seized as evidence, then they can break the password themselves. I was under the impression most modern law enforcement divisions had computer crime divisions or access to FBI help. Sini being a prosecutor probably has more insight on this issue.

.


Basically, the gist of it (from a previous article) is that its too well encrypted for standard decryption techniques so a brute force attack wouldn't work. Thus, they try to go another route.

So long as the warrant involved was specific enough to include turning over the key/combo, sure, I don't see why not.

Interesting.

I'd go with her Plan B then: "I do not recall."

Works for politicians, might as well work for Plebes too.

GonzoTheGreat
02-07-2012, 07:54 AM
Works for politicians, might as well work for Plebes too.
Of course, politicians then routinely get thrown into jail until their memory improves. So it is not entirely without risk.

Sinistrum
02-07-2012, 12:28 PM
Then why isn't that used far more often?
Simply issue a warrant stating "tell us how you did the murder and where you hid the corpse" and lots of cases can be solved, apparently without violating 5th Amendment rights at all. And if someone does not cooperate, then he or she will be locked up for obstruction of justice until they do, of course.


Because as I've already pointed out and you so poignantly ignored, there is a difference under the Constitution between physical or documentary evidence and testimony/confessions. The former is not covered under the 5th Amendment and the latter is not. Hence police cannot compel a person to confess to driving while intoxicated, but they sure as hell can compel them to submit to the taking a blood sample for BAC testing.

Interesting.

I'd go with her Plan B then: "I do not recall."

Works for politicians, might as well work for Plebes too.

Not much they can if that is indeed the case unless they have some sort of evidence that proves that "I do not recall" is garbage. Recorded jail phone calls are particularly good for that sort of thing.

GonzoTheGreat
02-07-2012, 02:48 PM
Because as I've already pointed out and you so poignantly ignored, there is a difference under the Constitution between physical or documentary evidence and testimony/confessions. The former is not covered under the 5th Amendment and the latter is not. Hence police cannot compel a person to confess to driving while intoxicated, but they sure as hell can compel them to submit to the taking a blood sample for BAC testing.
All right, I'll admit: I botched it.
So the police show up with a warrant for the corpse, and you have to produce it. Of course, that also immediately gives them rather strong evidence that you knew where the corpse was, that there actually was a corpse, and probably a few more details I can't think of, but it is still merely presenting "physical evidence" and not compelling you to say that you know anything at all about the murder.


Not much they can if that is indeed the case unless they have some sort of evidence that proves that "I do not recall" is garbage. Recorded jail phone calls are particularly good for that sort of thing.
Because when someone is saying something through a jail phone that is so far more guaranteed to be "the truth, the whole truth and nothing but the truth" than when they're testifying under oath.

Besides, even if she said on the phone that she remembered, then what's to happen if she types something in, gets the message "wrong password" and says "apparently I was mistaken"?

Then there are still two options: either take the "I do not remember" as truth, and release the suspect, or lock her up for the rest of eternity or until she does produce a working password, whichever comes sooner.
So, what would happen in such a case, realistically speaking? I suspect that she would indeed be locked up, without ever being convicted of any more than "failure to testify against herself"*.

* Now, I'll admit, the actual legal term. Still, I'm not a lawyer, so I can afford to be honest.

Gilshalos Sedai
02-07-2012, 03:55 PM
All right, I'll admit: I botched it.
So the police show up with a warrant for the corpse, and you have to produce it. Of course, that also immediately gives them rather strong evidence that you knew where the corpse was, that there actually was a corpse, and probably a few more details I can't think of, but it is still merely presenting "physical evidence" and not compelling you to say that you know anything at all about the murder.



Because when someone is saying something through a jail phone that is so far more guaranteed to be "the truth, the whole truth and nothing but the truth" than when they're testifying under oath.

Besides, even if she said on the phone that she remembered, then what's to happen if she types something in, gets the message "wrong password" and says "apparently I was mistaken"?

Then there are still two options: either take the "I do not remember" as truth, and release the suspect, or lock her up for the rest of eternity or until she does produce a working password, whichever comes sooner.
So, what would happen in such a case, realistically speaking? I suspect that she would indeed be locked up, without ever being convicted of any more than "failure to testify against herself"*.

* Now, I'll admit, the actual legal term. Still, I'm not a lawyer, so I can afford to be honest.

I can't decide if you're deliberately misrepresenting our legal system to get a rise out of Sini and the would-be lawyers, or if you're just that ignorant.

Having seen you accurately discuss our legal system in the past.... I think I'll go with the former.

GonzoTheGreat
02-07-2012, 04:10 PM
I think that there's some sort of practical middle ground between my "you don't have to help the police convict you" and the "you can be forced to help the police convict you" which I make out of what I see in these cases. I just don't like where the balance between them lies.
To me, the American system is crossing the line here by actually forcing suspects to aid in their own prosecution. I'll readily admit that this also happens in many other places (including my own country). I don't like it over here, and I do not like it anywhere else either.

This, like so many other items, is a clash between individual rights and the ability of governments to trample all over them in the name of "security, following the law" and such. As usual, the individual loses. Statists may applaud that, I don't.
Not requiring that she discloses the password (and thereby possibly incriminating evidence which the prosecution couldn't otherwise get) may let her get away some wrongdoing. But that is the price we should be willing to pay for freedom.

Gilshalos Sedai
02-07-2012, 04:16 PM
Here is the text of the Fifth Amendment. (http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution)

This is the amendment Sini said it actually pertained to. (http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution )

GonzoTheGreat
02-07-2012, 04:27 PM
Yes, and the question on which Sinistrum and I seem to differ here is the following:

Is being forced to produce information which could lead to your conviction being "compelled in any criminal case to be a witness against himself" or not?

Or, alternatively, does "describing the place to be searched" actually include the memory of a suspect?

And, if you want still another take on it, there's "particularly describing ... things to be seized."
This can apply to the laptop, which the prosecution has, so then they don't have to do any more, and consequently they have no reason to bother her.
Or it can be the unknown information on the laptop, which may or may not be incriminating. But in that case, they can definitely not "particularly describe" it, so in that case the Fourth should not apply.

Sinistrum
02-07-2012, 06:24 PM
I can't decide if you're deliberately misrepresenting our legal system to get a rise out of Sini and the would-be lawyers, or if you're just that ignorant.

Who says you have to decide? I'm pretty much sold on both with just about everything he says directed toward me at this point.

GonzoTheGreat
02-08-2012, 03:22 AM
Who says you have to decide? I'm pretty much sold on both with just about everything he says directed toward me at this point.
You have a rather high opinion of your own importance. Of course, that means that someone does, so that's something anyway.

I have a related, but somewhat different question about this case:
Suppose that the encryption had not been of a bunch of computer files that could be unlocked by typing in one password, but instead a whole hand written book in code, which could only be understood by decrypting it page for page. Could the suspect then too be forced to do this?

Cor Shan
02-08-2012, 03:42 AM
"I forget how"

Would this work in that case?

GonzoTheGreat
02-08-2012, 03:51 AM
"I forget how"

Would this work in that case?
Maybe, maybe not. If the court chooses not to believe it, then you will be locked up for contempt of court. At that point, it is up to you to provide positive proof that you are not able to remember, and if you don't manage that, then you will remain locked up.

Davian93
02-08-2012, 07:40 AM
"I forget how"

Would this work in that case?

Well, it is a work laptop so it likely has some random password that has to be changed every 90 days anyway. If its anything like my work, I am always forgetting my passwords...considering I have about 35 different ones I need to keep track of.

I mean, one idea would be to write them all down and store that information on an encrypted document and just remember the password to the encrypted document but that would be a security violation so I would never do that. It would probably work pretty well though.

Sei'taer
02-08-2012, 07:56 AM
Well, it is a work laptop so it likely has some random password that has to be changed every 90 days anyway. If its anything like my work, I am always forgetting my passwords...considering I have about 35 different ones I need to keep track of.

I mean, one idea would be to write them all down and store that information on an encrypted document and just remember the password to the encrypted document but that would be a security violation so I would never do that. It would probably work pretty well though.

Heh, I think it would too.

I've often wondered if they managed to get into my computer after I was let go from my job. My password was only 18 randomly generated characters and then most of my important files had randomly generated passwords of at least 12 characters and sometimes as many as 22.

Wow, I just found and old log book here with coded messages hidden with surveys and daily reports that aren't random in any way! I'm wondering if those might have been helpful? I'm wondering if they would have even known to look for them?

Davian93
02-08-2012, 08:55 AM
Heh, I think it would too.

I've often wondered if they managed to get into my computer after I was let go from my job. My password was only 18 randomly generated characters and then most of my important files had randomly generated passwords of at least 12 characters and sometimes as many as 22.

Wow, I just found and old log book here with coded messages hidden with surveys and daily reports that aren't random in any way! I'm wondering if those might have been helpful? I'm wondering if they would have even known to look for them?

Odds are they just reformatted it and reissued it to another employee. Unless they absolutely needed the info, they probably wouldn't have bothered to try and break in.