Well, well tougher issue than I realised
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| Author | Content |
|---|---|
| BernardSwiss Jan 24, 2012 8:48 PM EDT |
I was predisposed to get quite hot under the collar about this (and for sure, a "Dub'ya" Bush-appointed judge versus "civil-rights groups" is generally a red flag), but as surprising as it seems, this appears to actually be a good decision. (Additional details here http://arstechnica.com/tech-policy/news/2012/01/judge-fifth-... show this can't even be dismissed as a "fishing expedition" case; the prosecution has specific reasons to believe that relevant materials are on the drive.) There may also be matters of what irrelevant but embarrassing materials the defendant might legitimately want to protect from prying eyes, and what measures are in place to protect the defendants legitimate privacy interests. On the facts of the case this decision makes sense, and my concerns are really about where this might lead when (mis)applied to other circumstances. (For just one example, the practice of conducting non-warrant searches and even wholesale copying of computers, phones and electronic devices by border-guards, etc) |
| jhansonxi Jan 24, 2012 9:04 PM EDT |
Maybe this will make it a little more scary for you: A Minnesota appeals court has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent. |
| BernardSwiss Jan 24, 2012 9:28 PM EDT |
Yes, that is rather scary, I find that on an issue like this, my opinion liable to fluctuate -- sometimes for a particular reason, and sometimes "just because" -- it's a tricky issue. And as we see over and over; it's very natural to apply conventional concepts to the new, digital reality we now live in, but it is also extraordinarily easy to make or accept an analogy that doesn't really apply that well anymore to the new, digital-world situation. In this particular case, I find the Prosecution's argument fairly persuasive (especially as they presented evidence that the laptop belongs to the defendant, and that she knew (expressed on a recorded phone call) that there were incriminating documents on it). But I do worry that the logic and analogies used here could lead to consequences harmful to "presumed innocent till proven guilty" liberal-democratic principles. |
| flufferbeer Jan 24, 2012 9:55 PM EDT |
@BernardSwiss I don't know for certain, but I think that further advancements in encryption and decryption technologies could flee the U.S. as a result of law-enforcement like this, and instead go to Europe, Russia, China, India, the Middle East,...etcetera. One possible example of this occurring that readily comes to my mind is some U.S. technology shared with or stolen by China, then further developed and passed-along to Iran for its petroleum shipments. 2c |
| skelband Jan 25, 2012 1:09 PM EDT |
I disagree Bernard. Compelling someone to provide encryption details is compelling them to provide evidence. I can see why they want to do be able to do it, but I think the situation is pretty clear. Defendants should have to right to non-cooperation in their testimony. Even if the Supreme court finds some weasely way to interpret the wording of the 5th amendment, I would say that it is certainly in the spirit of the 5th amendment such that the onus is entirely on the prosecutor to produce damning evidence, not on the defendant. Consider a murder suspect. The prosecutors need the weapon as a valuable and damning piece of evidence but the murderer discarded the weapon used in the crime. The prosecutor "knows" that he did it. If only he could find the weapon, then they would have a case. AFAICT, it is not up to the accused to locate the weapon. This is the same situation. |
| Khamul Jan 25, 2012 3:54 PM EDT |
@fluffer: Don't be ridiculous. It's completely impossible for non-Americans to develop encryption technologies! Only Americans could possibly understand the mathematics involved! That's what the Clinton Administration thought, anyway, during the Clipper Chip days, and still seems to be the line of thinking. |
| kingttx Jan 25, 2012 6:10 PM EDT |
@skelband So, if the police have a warrant, should the homeowner be allowed to bar access to the home anyway under the same grounds? |
| BernardSwiss Jan 25, 2012 8:29 PM EDT |
@skelband By that logic, criminals could avoid conviction simply by depositing the evidence (murder weapon, victim, whatever) in a vault -- and even though the police have good reason to believe that the evidence is right there, can't get a warrant. In other words, perpetrators could avoid prosecution/conviction simply by locking up evidence. (And in this case the "good reason" is the accused's own words, caught by a legal phone tap in course of investigation). I'm a strong supporter of civil rights, but this strikes me as untenable. |
| jdixon Jan 25, 2012 9:19 PM EDT |
> So, if the police have a warrant, should the homeowner be allowed to bar access to the home anyway under the same grounds? No. But the homeowner shouldn't be required to provide the combination to their home safe to the police. It's up to the police to get the safe open. > ...criminals could avoid conviction simply by depositing the evidence (murder weapon, victim, whatever) in a vault -- and even though the police have good reason to believe that the evidence is right there, can't get a warrant. Without outside evidence, they can't get a warrant for any search, whether there's a vault or not. If they in fact have "good reason to believe the evidence is right there" a judge will normally be willing to grant a search warrant. If there's a warrant it gives them the right to open the vault, using pretty much any methods they choose, including having it drilled out and the door removed. What they can't do is force the person to give them the combination. That would be an incriminating act. |
| Khamul Jan 25, 2012 11:58 PM EDT |
@Bernard: Your analogy seems to be flawed. If the police really do have good reason to believe the evidence is in the vault, then why wouldn't they be able to get a warrant? If they can't get a warrant, then why would they be allowed to open someone's vault? Existing law is that police can't open vaults (or get the owners to open them) without a warrant, for good reason. If they have a warrant, then what's the problem? Either the owner produces the keys, or he watches his shiny, expensive vault get cut open the hard way. But he should be under no obligation to provide the keys or combination; if he refuses, it's the police's job to hire a safe-cracker and open the vault themselves. Same goes for encrypted data. If they can get a warrant to copy that data, then great. But now, unless the owner produces the key or passphrase, it's up to them to decrypt it. Good luck with that. That's not the suspect's problem. |
| JaseP Jan 26, 2012 10:08 AM EDT |
Yes and no... You cannot, as a suspect, refuse to give identifying information, for example. The big thing in this case is that the laptop is not, "an extension of the actor's mind." Therefore, it is analogous to any other object that he/she has in their possession. That includes files, records, etc. There is an early Supreme Court decision in which Aaron Burr's personal secretary was forced by court order to decrypt personal, encrypted communications. The Founding Fathers were still around at that point. There weren't riots in the street over the issue. While the court cannot compel, by torture, the decryption key,... It CAN impose sanctions on refusing to divulge the key, however. Those sanctions can include a contempt of court conviction, and/or allowing the prosecution to make the inference that incriminating documents are contained on the device to the jury... The defendant has to weigh the risks associated with divulging the key. If the potential punishment for divulging the key exceeds the potential contempt conviction and/or the risk that they'll be convicted anyway,... They should keep their mouth shut. If not, plea bargain. A smarter criminal would have imposed an encryption scheme that destroyed the incriminating files and replaced them with innocuous ones if a "dummy" key was input, instead of the "real" one... Illegal?!?! D@mned right... But if they are already a criminal... why not!!! They just shouldn't tell their lawyer about the "switcheroo." A lawyer has a duty of candor towards the court, and cannot allow false evidence or testimony to be introduced, at least knowingly... That is IF the lawyer is ethical... |
| jdixon Jan 26, 2012 12:04 PM EDT |
> There is an early Supreme Court decision in which Aaron Burr's personal secretary was forced by court order to decrypt personal, encrypted communications. Would those communications have implicated him/her, or just Burr? If they wouldn't have implicated him, then the 5th doesn't apply. You can't be forced to testify against your spouse, but your boss is fair game. > It CAN impose sanctions on refusing to divulge the key, however. Those sanctions can include a contempt of court conviction, and/or allowing the prosecution to make the inference that incriminating documents are contained on the device to the jury... Of course. That's always the case. The court can always fine you and throw you in jail, but those are really their only options if you refuse to cooperate. |
| skelband Jan 26, 2012 12:50 PM EDT |
@jasep: "It CAN impose sanctions on refusing to divulge the key, however." This is a slippery slope in my view. For what can't be demanded by law, can be demanded by accusing the defendant of contempt of court. If there is sufficient evidence to bring a court case, then there should be sufficient evidence to convict. It seems to me that a lot of these court cases end up as evidence fishing exercises. "The big thing in this case is that the laptop is not, "an extension of the actor's mind."" This is the kind of thing I mean in terms of "weasly" words. You are obliged to supply evidence against yourself or you are not. The wording of the original 5th amendment is pretty clear and straightforward. The problem for the criminal justice system is that sometimes it is difficult to convict someone of a crime. That's life and crims will forever try to find ways of destroying/hiding evidence. It's been that way from day one. I just don't think "perverting" the edges of the 5th amendment is the right tool. Once you go down that road, there is no stopping and that is what the originators of the amendment were afraid of. |
| JaseP Jan 26, 2012 4:17 PM EDT |
@JDixon: Arguably, Burr's secretary could have been indicted as a co-conspirator. After all, he was facilitating communications of a potentially criminal matter by coding and decoding them. Ultimately, Burr was innocent of Treason (& never prosecuted for killing Hamilton in their duel, either). So, the case is a thought exercise on the decryption issue only. The particulars of the encryption used will never come up again in our society, as they would easily be broken with modern methods. @skelband: There's a double edged sword to your logic. First, you follow your logic through to its conclusion, then anyone with a cryptographic scheme that is too good to be broken, gets a pass on prosecution. If you reject your logic, we put a kink in people's understanding of 5th Amendment rights. The key thing here is that the 4th is largely a procedural right,... That your effects can only be searched pursuant to a valid warrant. But the substantive part of the 5th, the right against self incrimination, also has a big procedural component. After all, the Court CAN use lawfully obtained confessions. Hearsay restrictions can also be overcome by exceptions in order to bring in the accused 's testimony. So, the very act of transcribing the records to a computer was essentially an admission. It left the defendant's mind and went onto a recording medium. Now that same defendant is looking for a "take back" in the form of locking the information up. If it were just her private thoughts, this defendant would be protected by the 5th. Since she wrote it down, so to speak, the information is governed by the 4th. By extending the 5th to information governed by the 4th, you are expanding her rights to a point that, arguably, was not intended by the authors of those amendments. Just playing devil's advocate here... I'm actually very sympathetic to her point of view. This could have an effect on alledged piracy of media. If they are allowed to compel decryption, what is to stop them from doing the same on the mere suspicion of DVD "format shifting???"At what point do privacy rights trump the fishing expedition??? We know they do when it comes to marital "relations." But would this extend to things that were once considered "fair use" rights??? Hmmmm ... |
| Khamul Jan 26, 2012 5:34 PM EDT |
Quoting:Just playing devil's advocate here... I'm actually very sympathetic to her point of view. This could have an effect on alledged piracy of media. If they are allowed to compel decryption, what is to stop them from doing the same on the mere suspicion of DVD "format shifting???"At what point do privacy rights trump the fishing expedition??? We know they do when it comes to marital "relations." But would this extend to things that were once considered "fair use" rights??? Hmmmm ... This is exactly why the 5th Amendment should fully apply here, and it should be illegal to compel suspects to produce encryption keys. It's too easily abused. If they can encrypt something in a way that's impossible to decrypt, then too bad. The authorities should have done a better or more competent job in their investigation, such as by using surveillance (with a warrant of course) to see what the suspect was doing, and even snoop the encryption key. If you have a secret camera in the suspect's home watching the keyboard, it should be easy to figure out the passphrase. This is something that investigators are allowed to do if they can obtain a legal warrant. |
| BernardSwiss Jan 26, 2012 9:37 PM EDT |
They're not asking for encryption keys, they're asking for documents themselves (or true copies), in useful form -- ie. the form they're customarily used, even by the owner -- and which they already know exist, already know where they are being kept, etc. This is clearly not a fishing expedition, as she has herself acknowledged the existence, location and protective measures, and has even been guaranteed that ability to produce the documents/unlock the laptop will not be treated as incriminating. Such production of documents is the standard for any other business documents involved in a court case; relevant documents are sub-subpoenaed all the time. One can NOT -- and never could -- refuse to hand them over on 5th amendment grounds, or on excuses that they were securely 'locked away" or "hidden" in the owners own safe or vault. I agree that there are concerns about divulging encryption keys or being required to "unlock" or decrypt personal digital devices or files -- It is a matter that bears close and on-going scrutiny. The legal status of encryption and privacy rights are vitally important; but they are not the essential heart of this matter. They are in this specific case a ruse, and exploitation of a readily confused side issue to avoid standard legal procedure. In this particular case, to allow the defendant to refuse compliance on this particular point is to lose track of the essentials and get tangled up in associated details that don't QUITE apply in these particular circumstances -- unless you are also prepared to argue that defendants should be allowed to refuse to produce known documents on the grounds that these documents are safely locked away in their vault, as well. |
| Khamul Jan 26, 2012 10:20 PM EDT |
Sorry, I don't buy it. What if the defendant forgot the keys? If you "knew" there were documents in a safe, and the defendant couldn't remember the combination to the safe, you'd just break it open the brute-force way. That defendant wouldn't be allowed to sit in jail for the rest of his life because some judge said he was in "contempt of court". I don't see how this is any different. You can't prove what's inside the defendant's mind. |
| gus3 Jan 26, 2012 11:28 PM EDT |
Yes, you can prove what's inside a defendant's mind. It's how perjury charges (should) work. |
| JaseP Jan 27, 2012 10:13 AM EDT |
@ gus3: Yo can't "prove" it, but you can form a belief as to its veracity. There's a difference between the two things. |
| skelband Jan 27, 2012 12:56 PM EDT |
It's entirely possible to prove that someone knows something. Another witness could testify that they told the fact to the suspect. A note in the suspect's handwriting could indicate this fact. An email that is verified to be genuine could indicate that the suspect knew the fact. As in all things, there is such thing as absolute proof of anything. But by that comparison, you could "know" that a suspect is guity of the crime from some other damning evidence. That doesn't mean that you could charge the suspect of perjury because they won't admit it. |
| Khamul Jan 27, 2012 2:28 PM EDT |
Witnesses don't prove anything. In fact, as far as I'm concerned, witnesses are worse than useless, as they leave out facts, they make up facts, they get facts totally wrong; I've seen it myself. Ever watch the movie "My Cousin Vinnie", when Vinnie (Pesci) cross-examines the "rock solid" witness testimony? It was a hilarious movie, but that part is absolutely real. People's perception of reality differs dramatically from person to person, and is highly tainted by their own biases and experiences. If you can prove the suspect is guilty from other damning (physical) evidence, that's worth a lot more, as long as that person didn't have an identical twin or something. And as far as I'm concerned, perjury is a useless charge, because again, you can't prove what people know in their heads. Witnesses are useless, and people forget stuff, or confabulate stuff, all the time. Also, witnesses lie. So what if a witness says "I told him X"? How do you know the witness isn't lying himself, either to get a better deal from the prosecution, because he's getting paid off, because he has it in for the defendant, or because he's a psychopath? As kids these days say, "pics or it didn't happen". With the cheap, tiny, and ubiquitous surveillance equipment available these days, there's no more reason to bother with witnesses and all that BS that's so prone to human failings. |
| jdixon Jan 27, 2012 4:32 PM EDT |
> With the cheap, tiny, and ubiquitous surveillance equipment available these days, there's no more reason to bother with witnesses and all that BS that's so prone to human failings. Well, that's all to the good, except that with the ease of editing video, there's also no reason to believe the video records. Incidentally, I love the fact that the current ad displaying above this thread (for me) is for RFHA Law, who apparently specialize in DUI cases. |
| JaseP Jan 27, 2012 6:45 PM EDT |
Khamul's got it right about testimony. If anyone has ever seen the video where you are expected to count basketball passes of a group wearing white shirts versus black shirts, it will make the point entirely clear. There's something that happens right in the middle of the action that most people don't catch. And it's not subtle, either. Human perception is horrible for fidelity. It's really good for filtering though. Unfortunately, filtered witnesses testimony is not necessarily what you want. |
| BernardSwiss Jan 27, 2012 7:46 PM EDT |
In this case, they have a recorded phone conversation, in which the woman, while talking to her husband about the problematic documents, confirms she has them on her computer and "protected" Aside from that, it's one of my own favourite rants that "eye-witness" testimony is so incredibly unreliable -- and that most people are horrifically unaware of this fact or oblivious to just how bad it is (and on top of that our legal processes often exacerbates the problem). |
| Khamul Jan 27, 2012 8:11 PM EDT |
@Bernard: You do have a good point there. A recorded conversation is something I'd consider very reliable; "eye-witness" testimony, however, I take with giant bag of rock salt. It does seem that our legal system places far too much importance on it, rather than physical evidence; I think it's due to the legal system's evolution from Medieval and even Roman times, well before the Age of Reason. |
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