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

I don't have the google-fu to find it, but I imagine these issues have come up before. Coded information has been around a long time -- everything from secret agent stuff to a personalized accounting system. It may even fall under, "read out what you've written here in shorthand." Surely the mafia and others have used codes? What about codes in text messages? Does the perp have to explain that "get me a bunch of bannanas" means, "I'll have that cocaine at the motel on Beechnut."

Any previous rulings on these issues?
 
crimresearch said:
You claimed the 5th amendment said something that it did not. You said that compelling someone to act in their own prosecution is a violation of the Fifth Admendment. You were flat out wrong.

Forcing someone to confess or *testify* against themselves is unconstitutional, but that isn't the only thing that 'incriminate' or 'aid the prosecution' means.

Your blind faith denial game of cutting and pasting the actual words of the 5th after I had already posted them, and pretending it somehow proves me wrong is just a waste of time, as is your backpedalling and moving of goal posts on the other items.

This isn't an MPORPG, so spare me the tap dance to avoid admitting that your 'Constitutional law' expertise is an online role you've adopted.
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It is difficult to discuss anything logically with a person who does not know how to have a logical discussion.
 
The Electronic Frontier Foundation weighs in on the case:

In the order issued yesterday, the court dodged the question of whether requiring Fricosu to type a passphrase into the laptop would violate the Fifth Amendment. Instead, it ordered Fricosu to turn over a decrypted version of the information on the computer. While the court didn't hold that Fricosu has a valid Fifth Amendment privilege not to reveal that data, it seemed to implicitly recognize that possibiity. The court both points out that the government offered Fricosu immunity for the act of production and forbids the government from using the act of production against her. We think Fricosu not only has a valid privilege against self-incrimination, but that the immunity offered by the government isn't broad enough to invalidate it. Under Supreme Court precedent, the government can't use the act of production or any evidence it learns as a result of that act against Fricosu.

The court then found that the Fifth Amendment "is not implicated" by requiring Fricosu to turn over the decrypted contents of the laptop, since the government independently learned facts suggesting that Fricosu had possession and control over the computer. Furthermore, according to the court, "there is little question here but that the government knows of the existence and location of the computer's files. The fact that it does not know the specific content of any specific documents is not a barrier to production." We disagree with this conclusion, too. Neither the government nor the court can say what files the government expects to find on the laptop, so there is testimonial value in revealing the existence, authenticity and control over that specific data. If Fricosu decrypts the data, the government could learn a great deal it didn't know before.

In sum, we think the court got it wrong. Regardless, the result is a very specific to the facts of this case and is unlikely to have far-reaching consequences, even if it stands.
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Disappointing Ruling in Compelled Laptop Decryption Case
 
"Under Supreme Court precedent, the government can't use the act of production or any evidence it learns as a result of that act against Fricosu"


Except of course, the Supreme Court precedent they cite (Hubbel), only narrowly addresses the fact that a warrant must particularly describe the things sought, i.e. the government can't just go on fishing expeditions, and the fact that a grant of immunity must be honored.

It does not hold what the EFF claims, that no document can *ever* be used against someone who is compelled to produce it.
 
RandFan said:
In fact, that is the very word that is often used when a password fails
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You're basing your definition of "access" on how a third party -- unconnected to this situation -- chose to word a message? The box could have just as easily have said "Complete. Please check that you can understand the output." no matter what key was used.


Christian Klippel said:
There is no way they can see that there is a hidden volume, since even an empty, regular volume would be completely filled with random data by default.
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This ruling is worrisome because now the court can keep you in jail forever. Every time you decrypt a volume they just have to demand you provide the key for the hidden volume inside it. Eventually you'll run out of hidden volumes, and you'll stay in jail for contempt of court because you can't produce a non-existent key.

Beerina said:
And at the end of the day, just saying the password gives evidence that what's contained therein is yours. That alone is enough to get this tossed.
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Good point.

RandFan said:
Granting access to the data isn't an interpretation. You are making that up.
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No, I am not. You apparently do not understand the difference between access and interpretation.

They have exactly the same data that the defendant did at the time they seized it (assuming the computer was off at the time). They can make as many copies of it that they want. They can print it out and wallpaper their houses with it. They can count how many time the 8-bit value 0x00 appears in it. They can change it. That is access to the data. What you want is new data derived from the data they have. That's interpretation -- be it translating a foreign language, deciphering, or explaining a poem.


Let's make this simple. The police seize a piece of paper with "13" on it. There is no question that they have access to the data. It's a piece of paper with "13" written on it that they're holding in their hand.

But it's a code, and means item 13 on some list I've memorized. The list is the key to this code. I "take the 5th" when asked what 13 means. Could a court order me to tell them what it means -- to give them the key or decode it? No, that could be testifying against myself.

If you agree with that, then you agree that forcing someone to decipher some data is wrong too because a code is a cipher with larger units (ideas or words instead of bytes).
 
If the defendant is told to produce the meaning entirely from his own mind, that infringes on the Fifth Amendment. If the defendant is told to produce the meaning by automated processing of a recorded medium, then he is not merely disclosing the contents of his mind.
 
SkepticScott said:
This ruling is worrisome because now the court can keep you in jail forever. Every time you decrypt a volume they just have to demand you provide the key for the hidden volume inside it. Eventually you'll run out of hidden volumes, and you'll stay in jail for contempt of court because you can't produce a non-existent key.
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Yes, the ruling is worrisome. Well, not for me, because i am not in the US, but simply as a precedent for other nations.

Well, it would be wise for someone to first refuse to give out any passwords at all, and only after some time, maybe even a few days in jail, to hand over the password for the outer volume. That way at least it looks plausible that this is really all there is.

Of course, one should be careful not to leave traces of a hidden container, as described on the TC site.

After that, i think that no sane court would keep one in jail because someone just thinks there must be more to it. What about burden of proof, and not being able to prove a negative, etc. But then, who knows...

Greetings,

Chris
 
SkepticScott said:
They have exactly the same data that the defendant did at the time they seized it (assuming the computer was off at the time). They can make as many copies of it that they want. They can print it out and wallpaper their houses with it. They can count how many time the 8-bit value 0x00 appears in it. They can change it. That is access to the data. What you want is new data derived from the data they have. That's interpretation -- be it translating a foreign language, deciphering, or explaining a poem.
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This is a good point. How about a court in some third world hellhole locking up a singer/songwriter till they explain what the jokes in that latest satirical ballad about glorious leader mean? Anyone can sing it, but unless you understand that the horse is a metaphor for opression, and the pumpkin with a hole in it represents the proletariat, it's just words.
 
Christian Klippel said:
Of course, one should be careful not to leave traces of a hidden container, as described on the TC site.
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Several years ago I thought about the need for a program like TrueCrypt. One of the problems I realized is that the existence of the encryption program on your system is itself a clue that something might be hidden. One solution I came up with was to add a second function to the program that securely erases the free space on the disk. Every unused block would be overwritten with random data that has also been encrypted using the same algorithm. This insures that there cannot even be a statistical indication that the free space contains encrypted data. At the same time, it offers plausible deniability that there might have been something there is the past but it has been erased.

The authors of TrueCrypt were obviously thinking along the same line so I wouldn't be surprised if TrueCrypt also offered an encrypted erase function.
 
Dan O. said:
The authors of TrueCrypt were obviously thinking along the same line so I wouldn't be surprised if TrueCrypt also offered an encrypted erase function.
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Yes, creating a new TC volume already causes TC to overwrite all the space with random data, which (as far as i know) is generated by it's own RNG, using mouse/keyboard events as seed (you have to move the mouse around for a while to generate that).

And again, the whole idea of plausible deniability in TC is that you can have TC installed, so everyone who looks knows, but that depending on the password you give, either the outer or the hidden volume is decrypted. All that while there is no way to tell if there actually is a hidden volume. Well, assuming you follow some basic rules to really hide the existence of that volume, that is.

The best cryptography does not help in case the user acts stupid.

Greetings,

Chris
 
Dan O. said:
So it would be pointless to create an encryption product designed to hide the evidence of stupid actions.
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Christian is saying that encryption products must be used competently to be effective.
 
Dan O. said:
And I am saying: Who uses such encryption products and what are they trying to hide?
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I use TrueCrypt full disk encryption on my laptop. There is nothing illegal on it but there is plenty of sensitive information that I would rather nobody see in case it gets lost/stolen. And since it is encrypted, they can't.
 
Gazpacho said:
If the defendant is told to produce the meaning entirely from his own mind, that infringes on the Fifth Amendment. If the defendant is told to produce the meaning by automated processing of a recorded medium, then he is not merely disclosing the contents of his mind.
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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"?????

If a court can't order a defendant to produce something from his own mind, then a court obviously can't order a defendant to do that plus something else!
 
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