Fed Judge: Forcing de-cryption does not violate 5th ammendment

SkepticScott said:
So, you think it's wrong for a court to order a defendant to confess because that comes entirely from the defendant's own mind. However, if they had a dictionary stored electronically, you think it would be allowable for the court to order the defendant to "pick the words from this dictionary so that, when this automated program puts them together, it will be a confession" because it's not "merely disclosing the contents of his mind"?????
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I can't begin to make sense of your scenario.
 
In practice, don't you just order them to produce the documents you want? The physical thing, I mean. So, for example, if the judge ordered I produce "all documents I have related my association with the KKK" and I gave him a bunch of shredded papers, I don't suppose the judge would have any difficulty seeing through my ruse and finding me guilty of interfering with an investigation (or worse).

If it were within my power to reconstruct those shredded papers, wouldn't the obligation be on me to do so?
 
Gazpacho said:
I can't begin to make sense of your scenario.
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I'm sorry, let me be more explicit. You wrote that forcing a defendant to disclose the contents of his mind was unconstitutional, but forcing a defendant to disclose the contents of his mind and running it through an automated process was OK. According to what you wrote, you think a court cannot order a defendant to "tell us where you hid the body" because it comes solely from his mind, but a court could order the defendant to do this

"Go through this PDF file of a dictionary, picking out the sentences word-by-word that tell us where you hid the body. Type the page number and number of the word on that page in to this program. When you are done, the program will automatically produce the sentences telling us how to find the body."

You claim this is acceptable because the result it isn't produced solely from information in the defendant's mind.


marplots said:
In practice, don't you just order them to produce the documents you want? The physical thing, I mean. So, for example, if the judge ordered I produce "all documents I have related my association with the KKK" and I gave him a bunch of shredded papers, I don't suppose the judge would have any difficulty seeing through my ruse and finding me guilty of interfering with an investigation (or worse).
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You're missing the point. The files were not encrypted after the seizure order, but well before. It's not a ruse. It's as if the judge ordered that you "all documents I have related my association with the KKK" and you say "I take the 5th, I will not say whether or not I had any association with the KKK. I shredded all my documents weeks before this investigation started. I've given you all the output from my shredder."

marplots said:
If it were within my power to reconstruct those shredded papers, wouldn't the obligation be on me to do so?
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How is that different from "If it were within my power to take the police to the body, wouldn't the obligation be on me to do so?"

Remember, in the U.S. justice system, a defendant does not have to prove his innocence.

Again, in this I am discussing a "fishing expedition" by the government, not one where they already have evidence that a crime been committed and more evidence is stored in the encrypted data. In a "fishing expedition" the government has no evidence that you committed the crime, but are hoping that there's evidence in the encrypted data.
 
SkepticScott said:
(much clipped)
Again, in this I am discussing a "fishing expedition" by the government, not one where they already have evidence that a crime been committed and more evidence is stored in the encrypted data. In a "fishing expedition" the government has no evidence that you committed the crime, but are hoping that there's evidence in the encrypted data.
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You may have identified a critical factor there. To get a warrant in the first place, don't they have to state what they are looking for and support that with reasons?

So, I'm not sure just how much is fishing and how much is hunting for something specific. But maybe I don't understand how a warrant is supposed to work. Do the police, as a matter of practice, search your computer with no previous expectation of finding something? In other words, say I am accused of selling drugs (they found me with some cocaine in the car) -- would a search warrant resulting from that (to search my house) include a blanket permission to seize my computer and search that? After all, I can't conceal cocaine in my computer. (OK, now I'm thinking about how I might do just that, but pretend that's not an issue.)

Now, contrariwise, if I am publishing something about the KKK on a printer, they might have an expectation that I have something on my computer and a valid reason to ask for it.

As far as "pre-destruction" goes, encrypted information isn't destroyed ahead of time, it's merely concealed. You could, if you wanted to, get it back without much bother. I think the difficulties with that involve the fact that "information" is not a physical item, which brings us around full circle again.
 
marplots said:
In practice, don't you just order them to produce the documents you want? The physical thing, I mean. So, for example, if the judge ordered I produce "all documents I have related my association with the KKK" and I gave him a bunch of shredded papers, I don't suppose the judge would have any difficulty seeing through my ruse and finding me guilty of interfering with an investigation (or worse).

If it were within my power to reconstruct those shredded papers, wouldn't the obligation be on me to do so?
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Under 18USC, once someone is in a position where a reasonable person would believe that they were under under investigation, any destruction of documents or data would bring a whole new pile of charges from the AUSA, and they have a pretty impressive conviction ratio. And this would extend to booby traps set in advance.
 
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I think marplots has idnetified the key.

As I understand it (and IANAL, not responsible, etc, etc ;)), a search warrant can't be issued as a pure fishing expedition. There has to be some reason to believe that evidence exists in the first place. For example, a search warrant for your house can't be issued unless the police can show you were at tleast involved witht he crime, and that there might be evidence in your home. For example, a witness palces you at the crime scene at the time of the crime, and the murder weapon was not found there (and I don't know if that's enough, but it gives the idea). So they'd need something to show that the encrypted documents likely contained evidence. Say, for example, you had been emailing encrypted files back and forth to a person who was convicted of money laundering, and there were some money transfers from them to you or vice versa.

I don't know how far off I am there, but perhaps one of the lawyers on our forum can elucidate this point and perhaps clarify some things for us.
 
crimresearch said:
Under 18USC, once someone is in a position where a reasonable person would believe that they were under under investigation, any destruction of documents or data would bring a whole new pile of charges from the AUSA, and they have a pretty impressive conviction ratio.
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Three convictions for every one guilty suspect? :p
 
Warrants and searches are both constrained by the 'reasonableness' standard. For warrants, that includes listing what is being sought in some fashion.

Scott's imaginary fishing expeditions and forced confessions would make some lawyers very very wealthy.

These 'here's what you do to outsmart the feds and the judges' games are no more effective in court than spraying magic coating on your license plates or putting tin foil in your hub caps to defeat cameras and radar.

Nice bit of 'what if', but Allenwood still stays booked up.
 
SkepticScott said:
I'm sorry, let me be more explicit. You wrote that forcing a defendant to disclose the contents of his mind was unconstitutional, but forcing a defendant to disclose the contents of his mind and running it through an automated process was OK.
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No that is not what I said.

In this case, the password is in the defendant's mind. The encrypted documents are not in the defendant's mind. They are stored on a storage medium. These details have been established by independent evidence. The defendant has been ordered to decrypt the documents on the storage medium (an automated process involving a program known to both the defendant and the government), not to reveal that which is in her mind that enables her to do so.
 
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Let me rephrase your statement.

In this case, the location of the body is in the defendant's mind. The body is not in the defendant's mind. It is somewhere in the world. These details have been established by independent evidence. The defendant has been ordered to mark a map showing where the body is (an automated process involving a system known to both the defendant and the government), not to reveal that which is in her mind that enables her to do so.

It still seems unconstitutional.
 
crimresearch said:
Scott's imaginary fishing expeditions
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I'm imagining a situation like this: You're stopped for a traffic stop for a burnt-out taillight, and while the officer is checking your ID, an APB goes out stating that Dr. Lucky, your worst enemy, was just brutally murdered. You're the best suspect despite no evidence because it's well known that you hated each other. When being questioned you mention that you used that laptop to look at Google Maps to plan your route, but deny knowing Dr. Lucky was nearby. The laptop which you had in your car when you were stopped is encrypted. Now, if there is something on the laptop that linked you to the crime, perhaps a Google search, or map showing a route to the murder scene, or maybe even some plans, then the police would have evidence linking you to the crime. I think it's conceivable that a judge might possibly order you to decrypt your laptop under those circumstances, especially if the police misrepresent or over-emphasize your reactions ("Every time we mentioned 'murder' and 'laptop' together the suspect got very nervous.")
 
SkepticScott said:
The defendant has been ordered to mark a map showing where the body is (an automated process involving a system known to both the defendant and the government), not to reveal that which is in her mind that enables her to do so.
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That is an impossibility. What the defendant has been ordered to do in this case (based on the evidence before the court) is not.
 
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http://www.ca11.uscourts.gov/opinions/ops/201112268.pdf

I think this is the same case. The court ruled that revealing the password would indeed be "giving evidence", and that the defendant cannot be compelled to do so, based largely on grounds that the prosecution could not whow that they knew what was in the encrypted containers, or even if there was anytihng on there at all.

(Also, they failed to grant the defendant immunity correctly, which they could have done to secure the evidence for future use against other people or some such.)
 
So what are the worries about this judgement? Why is it wrong for a court to force you to turn over the information on your laptop as evidence in the same way they can force you to hand over paper documents? I'm almost certainly missing situations where this is a bad thing. What are they?
 
SkepticScott said:
I'm imagining a situation like this: You're stopped for a traffic stop for a burnt-out taillight, and while the officer is checking your ID, an APB goes out stating that Dr. Lucky, your worst enemy, was just brutally murdered. You're the best suspect despite no evidence because it's well known that you hated each other. When being questioned you mention that you used that laptop to look at Google Maps to plan your route, but deny knowing Dr. Lucky was nearby. The laptop which you had in your car when you were stopped is encrypted. Now, if there is something on the laptop that linked you to the crime, perhaps a Google search, or map showing a route to the murder scene, or maybe even some plans, then the police would have evidence linking you to the crime. I think it's conceivable that a judge might possibly order you to decrypt your laptop under those circumstances, especially if the police misrepresent or over-emphasize your reactions ("Every time we mentioned 'murder' and 'laptop' together the suspect got very nervous.")
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It's not really about this, any more than owning guns is about hunting.

It's about overbearing governments of the past abusing their power to maintain their power. So some men wiser than politicians of today, indeed most weren't even really politicians, thank god, decided to blanket forbid government from doing anything except exercising a few, well-defined set of powers.
 
NeilC said:
So what are the worries about this judgement? Why is it wrong for a court to force you to turn over the information on your laptop as evidence in the same way they can force you to hand over paper documents? I'm almost certainly missing situations where this is a bad thing. What are they?
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He wasn't asked to turn over the contents of the laptop. The authoroties have the laptop and everything that is on it.

The authoroties have no idea what is or is not on his laptop; they have zero evidence that he even put the encrypted files on his laptop. They have also not asked for anything specific to be released to them - and it turns out that all those are reasons for the accused to not have to give away anything.

Apparently, they cannot ask for "whatever is on the PC", they need to have a pretty good idea what they are looking for and they need some evidence that it is there at all.

They cannot go and just search through all your stuff until they find something, somewhere.

(And they couldn't do it with paper, either.)

Furthermore, in giving out the password he would actually be incriminating himself if it should turn out that there was something on the drives: Knowig the password makes it impossible for him to claim he had no idea what was on the computer in the first place, e.g.

This is one of the situations thatr makes it a good thing: They have notihng and they cannot force him to produce something that'll show his guilt.

It is generally a good situation that your stuff cannot be searched and taken away on someone's hunches, too.
 
Rasmus said:
http://www.ca11.uscourts.gov/opinions/ops/201112268.pdf

I think this is the same case. The court ruled that revealing the password would indeed be "giving evidence", and that the defendant cannot be compelled to do so, based largely on grounds that the prosecution could not whow that they knew what was in the encrypted containers, or even if there was anytihng on there at all.
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It's not the same case and it's not quite the same legal question either, though similar. The distinction turns on what constitutes evidence that (1) there is encrypted data on the computer (2) the defendant can decrypt it.

In the Boucher case, the defendant personally showed border officers that there was child porn on his encrypted drive (idiot). In the Fricosu case, the government argues that the computer's domain name, the known presence of PGP Desktop, and the prison conversation constitute prior evidence (maybe, maybe not). In this Doe case, the government has no prior evidence at all, and is merely fishing.

NeilC said:
I'm almost certainly missing situations where this is a bad thing. What are they?
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The situation where officials decide that certain people need to be imprisoned for non-legal reasons, and then conduct fishing expeditions to build a legal pretext.
 
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