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US District Ct. Says Defendant Must Provide Decrypted Data

timothy posted more than 5 years ago | from the narrow-ruling dept.

Privacy 767

An anonymous reader writes "If you're planning on traveling internationally with a laptop, consider the following: District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case. Laptop searches at the border have been discussed many times previously. This is the case where a man entered the country allegedly carrying pornographic material in an encrypted file on his laptop. He initially cooperated with border agents during the search of the laptop then later decided not to cooperate citing the Fifth Amendment. Last year a magistrate judge ruled that compelling the man to enter his password would violate his Fifth Amendment right against self-incrimination. Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents." sohp notes that "the order is not that he produce the key — just that he provide an unencrypted copy."

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God Hates Fags! (-1, Offtopic)

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Re:God Hates Fags! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27005567)

You know, some people really think like this, that it's right to morally crusade against a group of people based on their morals, their beliefs or their sexuality.

Gay? You're a disgrace.
Straight? Someone *else* thinks you're a disgrace.
Atheist? Female? Religious? Someone'll be prejudiced against you.

In a world getting smaller by the decade; this refusal to tolerate keeps up and sooner or later there's gonna be a reckoning.

5th Amendment (5, Insightful)

alain94040 (785132) | more than 5 years ago | (#27004915)


Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive.

I don't know anything about the 5th Amendment, but I was under the impression that it was way stronger than this quote suggests. Just because I admitted that it's my laptop, I now can't take the 5th? In movies at least, that's not how it works :-)

Imagine if you treated the 1st Amendment the same way... we'd be in serious trouble. "By admitting that you have an opinion contrary to the government, you gave up your rights to free speech".

Re:5th Amendment (5, Insightful)

Anonymous Coward | more than 5 years ago | (#27004947)

By living in this country, you hereby have been co-operating with the government, and have therefore waived all your rights.

I only wish I was joking more than I am...

Re:5th Amendment (5, Interesting)

fastest fascist (1086001) | more than 5 years ago | (#27004995)

Also if the defendant is not required to provide the encryption key/password, but an unencrypted copy, what's to keep them from providing a "sanitized" copy - how do you check if it's the same bunch of files if you can't see the encrypted data?

Re:5th Amendment (4, Funny)

jockeys (753885) | more than 5 years ago | (#27005099)

exactly. or, as I thought to myself when I initially read this:

"Why not just lie and provide a bunch of mundane TPS reports? They shouldn't be able to tell what the encrypted files are, it's mathematically infeasible to solidly prove that one way or another."

Re:5th Amendment (1)

sudotron (1459285) | more than 5 years ago | (#27005151)

Just make sure they have the right coverpage.

Re:5th Amendment (2, Funny)

Anonymous Coward | more than 5 years ago | (#27005237)

Uh, yeah. Did you get that memo? I'll make sure you get another copy.

Re:5th Amendment (5, Insightful)

neoform (551705) | more than 5 years ago | (#27005175)

If the files were encrypted, there's no way the police could have identified any of the files. It was his fault for helping the police in the first place.

You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

Re:5th Amendment (5, Interesting)

couchslug (175151) | more than 5 years ago | (#27005623)

What is needed is a destructive decryption program that produces files with innocent .zip or .rar file extensions that "decompress" into benign images or other files while destroying the original data. Unless the file is renamed and then opened with the appropriate program, no data is available.

All defaults would appear "wholesome",

The Thought Police request access to your flash drive. You hand it to them without comment, they open the files which display innocent images you personally selected beforehand. There is no steganography, the data is lost.

Re:5th Amendment (3, Insightful)

RichardJenkins (1362463) | more than 5 years ago | (#27005635)

It's a pretty horrible notion; but the courts seem to want to make this abhorrent attitude the only reasonable way to deal with police.

Re:5th Amendment (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27005193)

The article states he had to provide an unencrypted copy of the data because the government already knew what was in it, so the argument that producing the data would self incriminate is invalid because he would be telling the government anything they don't already know. Just providing the proof of what they know. Sounds even worse that giving up your rights because you initially cooperated. In this case what's to stop the police from saying they know whats in the files when they really are just guessing, and at what level do you say okay they "really" do know. If they really do know without any doubt what's in the files I find it odd that they need the files unencrypted.

Re:5th Amendment (2, Informative)

Ethanol-fueled (1125189) | more than 5 years ago | (#27005497)

In this case what's to stop the police from saying they know whats in the files when they really are just guessing, and at what level do you say okay they "really" do know.

Remember, folks, in America law enforcement are allowed to lie to you.[pdf] [transformcolumbusday.org]

If law enforcement ask questions which make you uncomfortable, ASK FOR A LAWYER and SAY NOTHING ELSE. They will try to mess with your head and they will bring in fake stacks of "evidence" papers and do whatever else it takes. DO NOT LISTEN TO THEM and do not sign anything.

The Ammendment (5, Informative)

mangu (126918) | more than 5 years ago | (#27005241)

I don't know anything about the 5th Amendment

Here's the full text:

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I wonder, which part of "nor shall be compelled" did the honorable judge not understand?

Re:The Ammendment (2, Insightful)

Threni (635302) | more than 5 years ago | (#27005515)

> I wonder, which part of "nor shall be compelled" did the honorable judge not understand?

I think you should write and tell him! Those guys always get corrected by Slashdot posters! Who do they think they are, anyway?

Re:The Ammendment (5, Informative)

muridae (966931) | more than 5 years ago | (#27005651)

The guy gave the police his laptop, and cooperated with them. If I open a diary, during a border crossing or car search or what ever, and the cop sees evidence that I killed someone, they can get a subpoena for the book and I can't invoke the 5th. I already showed it to them. If this guy had kept his mouth shut to start with, not shown the police any part of the encrypted drive, he would be fine.

The 5th is not an on-and-off right. You can't get on the stand at your own trial to testify in your own defense, and then start invoking the 5th when the prosecutor asks questions you don't like. The same here, he gave them the computer, they saw the data. He can't say, after that, "Sorry, I'll take the 5th, you can't see the computer again."

Re:5th Amendment (4, Informative)

conlaw (983784) | more than 5 years ago | (#27005245)

It wasn't just that he admitted that it was his laptop; he actually opened the Z drive for the border agent who then saw evidence of child pornography. This is like you standing at your door and saying, "Of course you can come in and search my house, officer." Once you've done that, you can't really take the 5th with regard to the illegal items they find in that search.

And before someone raises the issue, the decision should come down differently if the illegal goods were found in your roommates room and you had no way of knowing that he possessed these items.

Re:5th Amendment (4, Insightful)

physicsphairy (720718) | more than 5 years ago | (#27005249)

IANAL, but I imagine there is a distinction between 'self-incrimination' and 'providing evidence.'

Since he has already admitted that the laptop is his and he is responsible for storing pictures in the encrypted section, the barrier between convicting him and not convicting him is merely whether the photos are retrieved. This could just as well be done by technological means (hypothetically!) as having him give up the password.

The reason for his having a right to retain the password is because this essentially admits his possession and access to the encrypted data. Forcing him to provide it is forcing him to prove his guilt, which is obviously self-incriminating. But since he has already given that testimony, now the password is just a barrier to material evidence the court would like to collect.

Re:5th Amendment (0)

Anonymous Coward | more than 5 years ago | (#27005259)

Or by taking the 5th, you forfeit your 1st!

Re:5th Amendment (4, Interesting)

nasor (690345) | more than 5 years ago | (#27005265)

Courts have ruled before that you can't take the 5th to refuse to unlock a safe that you own. The reasoning is that the information you're providing - the combination to a safe, or in this case a decryption password - could never be incriminating in and of itself. It's the same reasoning that they used when they decided that the 5th doesn't give you the right to refuse to disclose your name. Now, if he had wanted to claim that the encrypted files weren't his and he didn't know how they got on his laptop, then providing the password COULD potentially be incriminating, because it would be evidence that the files were indeed his. But now that he has admitted to owning the files, that scenario is no longer relevant.

This isn't a safe (0)

Anonymous Coward | more than 5 years ago | (#27005607)

Not unless it is one of those 80's-90's luggage-sized "laptops".

Re:5th Amendment (2, Informative)

NotBornYesterday (1093817) | more than 5 years ago | (#27005361)


Curtis asked Boucher "to use the computer" to show him the files he downloads. Curtis reviewed the video files, observing one that appeared to be a preteen undressing and performing a sexual act, among other graphic images, the affidavit says.

"Curtis" is the border agent.

IANAL, but I'll comment anyway. He allowed a border agent enough access to his computer for the border agent to actually see CP on it. At this point, probably cause exists to search the laptop, so it is less like trying to extract a confession, which is what the 5th was originally designed to protect against, and more like executing a search warrant.

Re:5th Amendment (0)

Anonymous Coward | more than 5 years ago | (#27005375)

I was always under the impression that, in this country at least, the 5th Amendment gave an individual the right to think about your breathing. Given that, it is much more likely for one to consciously breathe instead of letting your brain subconsciously drive, and all you had to do was think about your breathing!

Re:5th Amendment (2, Insightful)

IP_Troll (1097511) | more than 5 years ago | (#27005431)

The 1st amendment states that: "Congress shall make no law ... abridging the freedom of speech...."

The 5th amendment states: "No person ... shall be compelled in any criminal case to be a witness against himself...."

You cannot compare 1st and the 5th amendments, in the manner you did, because they do not have analogous effects. One prevents congress from making laws the other vests rights in an individual. You cannot waive your 1st amendment right because it is not granted by the 1st amendment, it is considered inalienable, and congress is prohibited from impinging on it by the 1st.

Also, this whole focus on the 5th amendment is a waste of time, Boucher cooperated with border patrol, he waived his 5th amendment right at that time. He told the cops everything. If he now wants to re-assert his 5th amendment right, he can, but the cops can testify against him. You cannot plead the 5th to prevent other people from testifying against you.

If you admit it is your laptop, you can plead the 5th at trial, but the cop can say "He said it was his laptop."

The cat is out of the bag, Boucher let it out, quit whining.

Re:5th Amendment (4, Informative)

canajin56 (660655) | more than 5 years ago | (#27005613)

You can take the 5th all you want. You can't take it on what you've already admitted to. He said its his laptop, and he said Z: is an encrypted partition where he stores the images. The image files names from recent documents looked like child porn. That got them a warrant. He refused to cooperate with the warrant. The judge said you can't take the 5th on whether those pictures are there, since you admitted it. Since they are there, you must cooperate with the warrant and let us see them. You don't have to testify as to the password, but you DO have to use it to show us the files.

So basically... (1)

sofar (317980) | more than 5 years ago | (#27004919)

changing your mind is forbidden?

Re:So basically... (0)

Anonymous Coward | more than 5 years ago | (#27005007)

Ja, Changing zee mind ist VERBOTTEN!!!!

Re:So basically... (3, Informative)

murdocj (543661) | more than 5 years ago | (#27005221)

No, showing the cops evidence and then saying "gee, I didn't mean to show you that, you can't use that evidence" is forbidden, for pretty obvious reasons.

Re:So basically... (1)

JaredOfEuropa (526365) | more than 5 years ago | (#27005571)

No, showing the cops evidence and then saying "gee, I didn't mean to show you that, you can't use that evidence" is forbidden, for pretty obvious reasons

But he didn't show the encrypted stuff in the first place, not in unencrypted form anyway.

I suppose the conversation went more like this:
"Can we have a look at your laptop, sir?"
- "Of course, go right ahead officer"
"What is in this encrypted folder, sir?"
- "I'm sorry but that's private"

It seems silly to claim that the guy gave up his rights just because he agreed to the cops having a peek at the files on his laptop that he did not consider private. Or should he have contacted his lawyer right away, and given a written statement to the effect that the cops can look at unencryoted files but that he does not in any way shape or form waives the right to claim the 5th, etc, etc? Because we all know how well that sort of attitude sits with nosey cops who have the right to deny you entry or impound your laptop on a whim.

How is this over turned. (4, Insightful)

jgtg32a (1173373) | more than 5 years ago | (#27004945)

I didn't RTFA, but the summery says "the man had waived his right against self-incrimination when he initially cooperated with border agents"

You still don't have to turn over your encryption keys he waved his right to the 5th, it doesn't apply to the rest of us, we can still say no.

Initial cooperation (5, Insightful)

Imagix (695350) | more than 5 years ago | (#27004951)

So if you initially cooperate, you can no longer claim 5th amendment protections? Hmm... you "initially cooperated" with the police when you said what your name was. You can no longer claim the 5th amendment. Slippery slope anyone? (Good thing I'm not American)

Re:Initial cooperation (4, Informative)

cfulmer (3166) | more than 5 years ago | (#27005085)

No. If you show the border agents the encrypted kiddie porn on the hard drive, you cannot later claim that being forced to give them a copy of that same kiddie porn would be a violation of your 5th amendment right.

Re:Initial cooperation (0)

Anonymous Coward | more than 5 years ago | (#27005297)

Who says it was kiddie porn, or that he showed it to the cops? Him? The cops? The evidence? If the evidence shows he confessed to having kiddie porn, why bother with compelling the data?

Re:Initial cooperation (1)

PaganRitual (551879) | more than 5 years ago | (#27005103)

Yeah I was wondering this as well. Using 'intitial cooperation' as a starting point, you could technically call answering the border patrols request to step aside so we can rifle through your belongings to be cooperation.

Re:Initial cooperation (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27005267)

That part is misleading. I suggest reading the first link.
It looks like the initial cooperation provided probable cause that the laptop contained illegal documents.
So a subpoena was upheld forcing him to turn over an unencrypted copy of the drive.

Given probable cause there is no 5th amendment issue with the government executing a search warrant.

The issue decided in the case was wither him revealing his password would be considered self incriminating speech. His lawyers claimed it was like forcing him to admit to something... the government claimed it was more akin to forcing him to open his trunk when presented with a warrant.

I think the 'initial cooperation' language out of context is misleading.

Re:Initial cooperation (0)

Anonymous Coward | more than 5 years ago | (#27005409)

That's absolutely right. It's also why when you see people who "take the Fifth" under advice of counsel, say before a Congressional hearing, they will claim Fifth Amendment privilege for almost any question asked. Even something as mundane as "What did you eat for breakfast?"

The rationale is, essentially, that once you've answered a question, you've waived the privilege for anything related to that general subject matter. So, if an opposing attorney can get you to answer a non-incriminating question, and then figure out a way to relate that answer to another question that may lead to an incriminating answer -- well, if you answered the first question, you waived the privilege with respect to the second, and can be compelled to testify.

What? You didn't learn that in civics class?

Re:Initial cooperation (3, Interesting)

at_slashdot (674436) | more than 5 years ago | (#27005443)

(Good thing I'm not American)

so... good thing that you don't have that right in the first place?

Re:Initial cooperation (1)

Imagix (695350) | more than 5 years ago | (#27005557)

Naw... I've got a Charter of Rights and Freedoms that protects that. And the way this is going.. are you sure _you_ have that right?

Re:Initial cooperation (1)

at_slashdot (674436) | more than 5 years ago | (#27005621)

Hey, how do you know where I live? I didn't mention that, nor have I mentioned that I'm glad or not... you did.

Re:Initial cooperation (1)

GryMor (88799) | more than 5 years ago | (#27005477)

No, this is actually a good think, it now must be ok for you to not cooperate by pleading the 5th.

So you're not allowed to change your mind? (2, Insightful)

ArcadeNut (85398) | more than 5 years ago | (#27004953)

So once you waive your rights, you are not allowed to re-invoke them?

This case will probably hit the SCOTUS.

It will be a case to watch, that's for sure!

Re:So you're not allowed to change your mind? (1)

johnsonav (1098915) | more than 5 years ago | (#27005203)

So once you waive your rights, you are not allowed to re-invoke them?

Sometimes, yes. It works that way when you're testifying before a grand jury. If you answer even one question, you can't take the fifth later.

Re:So you're not allowed to change your mind? (1)

eosp (885380) | more than 5 years ago | (#27005283)

The exception being identifying oneself.

Re:So you're not allowed to change your mind? (1)

dbcad7 (771464) | more than 5 years ago | (#27005543)

I think it's more like, once you've willingly shown evidence that can be used against you, you can't then say that you refuse to give a copy of the evidence.

I think this is now going to come down to a choice for him.. Living with the consequences for obstruction of justice by refusing to cooperate further, or giving them what they want and living with those consequences... I am willing to bet he goes with the obstruction. (unless there really isn't anything bad on the drive)

Re:So you're not allowed to change your mind? (0)

Anonymous Coward | more than 5 years ago | (#27005561)


Once you waive your rights, they are GONE.

That's part of the point.

Your rights only protect you if you exercise them; if you do not exercise them, they do not exist for you.

Is it even POSSIBLE to waive the 5th? (1)

erroneus (253617) | more than 5 years ago | (#27004969)

I see it all the time when someone decides when and where to stop answering questions and pleading the fifth amendment. This judge can't see beyond his desire to see evidence exposed. Dangerous.

Misleading topic (4, Insightful)

nobodylocalhost (1343981) | more than 5 years ago | (#27005003)

"US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."

e.g. it isn't so much of an issue with what the court order asked of the defendant, but rather, an issue of if he waived his rights.

basically, don't cooperate with the police/feds/border agents to start off with. plead the fifth no matter what.

Re:Misleading topic (1)

iminplaya (723125) | more than 5 years ago | (#27005083)

...plead the fifth no matter what.

If everybody does that, it will be repealed. Just because you have these rights, it doesn't you can actually USE them.

Re:Misleading topic (1)

pmarini (989354) | more than 5 years ago | (#27005239)

isn't that what a "right" is supposed to be ?
something for which people before us fought so hard that it's now considered normal to be able to do what it states and also pass it on to future generations ?
maybe I'm missing something here (or maybe the people of USA are) but a "right" is not like some kind of goods that there cannot be enough for everybody...

Re:Misleading topic (2, Insightful)

FiloEleven (602040) | more than 5 years ago | (#27005291)

And how exactly will it be repealed without another constitutional amendment? And how exactly do you propose that support for such a repeal would be obtained? The "think of the children!" argument will get you a decent amount, sure, but nowhere near enough to pass an amendment.

No, what will more likely happen is that it'll continue to be slowly and unconstitutionally eroded just like...well, like the rest of the constitution.

Never talk to the police. Ever. (2, Insightful)

gknoy (899301) | more than 5 years ago | (#27005225)

As a reminder, never ever EVER volunteer information to the police. Get a lawyer, ALWAYS.

This was linked on Slashdot once before:
"Don't Talk to the Police" by Professor James Duane [google.com]

The policeman perceives his job as to "make arrests", and the DA's job is to "make convictions". They (mostly) care only that tey have an ironclad case, and not whether or not you are innocent.

Re:Misleading topic (1)

Kabuthunk (972557) | more than 5 years ago | (#27005413)

Minor problem with that:

Say you just paid oh... $500 for a plane trip to a vacation spot. Some prick officer asks you to open a file. You have the following options. Keep in mind I'm cynical at the best of times however:

(a) Plead the 5th. You're held and/or brought in for questioning. You miss the plane, thus losing your vacation, $500, and god help you if you had business there, because you just lost it. Congratulations, your life may be fucked, depending on how important the flight is.

(b) Open the file. Which leads to:
- 1) They find nothing, you go on your merry way.
- 2) They find nothing, but take forever searching computer. See (a).
- 3) They find something (and no matter how clean you are, if they're a prick enough, they WILL find something to tag you with). See (a), except now add a criminal record.

You can hope and pray that you get b1, and statistically that may well be the one you'll get (I'm guessing, since I have no clue how often people are held past the plane's departure for searchings, or how often searchings happen)... but if you get any other option, your losses can be anywhere from minor to unrecoverable and life-changing.

So virtually all people will not plead the 5th right off the bat, unless you have no concern for money or time or annoyance... and the number of people who think that are slim to nil.

Personally, if I were to fly anywhere, I'd just not take a computer. If for some bizarre reason I absolutely HAD to take some data with me that I couldn't just upload somewhere temporarily, I'd have a micro-SD card hidden in my watch enclosure or something. At least last I was at the airport, they haven't been scanning the spare change/etc you put in that little bin yet.

Re:Misleading topic (0)

Anonymous Coward | more than 5 years ago | (#27005603)

Sort of like, "well first she said 'Yes', but then changed her mind and said 'no.'"

She initially consented, so game on? I think not...

I forgot the password... (1)

bfmorgan (839462) | more than 5 years ago | (#27005021)

The computer has been in evidence and out the control of the defendant, so... "I forgot the password".

then what proof? (4, Interesting)

nebaz (453974) | more than 5 years ago | (#27005027)

So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?

Re:then what proof? (1)

MichaelSmith (789609) | more than 5 years ago | (#27005117)

So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?

Maybe he is not prepared for that. If set up correctly there would be no difference between an encrypted volume and random data. But if the police know you have a pgp file there they will ask you for the passphrase and decrypt it themselves.

When I travel I take a clean laptop. The police can look at anything they like. Of course I can still get my hands on files I need.

Re:then what proof? (1)

gknoy (899301) | more than 5 years ago | (#27005257)

More importantly, they can ask you to take that unencrypted data and prove that it encrypts to the output in evidence. They probably have a way to Find Out if you are lying about it, unfortunately.

All the more reason for truecrypt within truecrypt.

Re:then what proof? (1)

arbiter1 (1204146) | more than 5 years ago | (#27005303)

you probably don't figure they have a exact copy of the encrypted data stored on their end of things just so if they appeal the ruling and win to get the key, you can't give them somethin else

Re:then what proof? (1)

geekmux (1040042) | more than 5 years ago | (#27005287)

So why doesn't he just turn over some benign images as the "decrypted data"? How can they know, without the encryption key?

Exactly. Oh, I'd "decrypt" it alright...

"What do you mean it was empty?"

Re:then what proof? (1)

91degrees (207121) | more than 5 years ago | (#27005331)

That would presumably be perjury. You might get away with it but really it's not something you want to be charged for. Perjury has pretty stiff penalties. Refusal to provide the key will be, at worst, contempt of court, which, I believe, has a much lighter penalty.

Absurd (3, Insightful)

ThePlague (30616) | more than 5 years ago | (#27005033)

He's still being compelled to provide evidence against himself, so I don't see how the fact that he initially cooperated waives his fifth amendment rights.

Re:Absurd (1, Interesting)

Anonymous Coward | more than 5 years ago | (#27005441)

That is why the ruling was close. You can look at it as him providing evidence against himself. Or you can look at it as him blocking execution of a search warrant (essentially).

The data was subpoenaed based on his initial cooperation. So the ruling is now that the police know something is there... he can't claim he is providing evidence against himself any more than he could refuse to turn over the contents of his suitcase if properly subpoenaed.
The difference is the lock is easier to cut off the suitcase, with the encryption he needs to enter the password.

Changing their minds (1)

slackoon (997078) | more than 5 years ago | (#27005057)

Simple, "The fifth amendment protects witnesses from being forced to incriminate themselves". There is no need for further explanation..oh wait...maybe it should read "The fifth amendment protects witnesses from being forced to incriminate themselves unless we say otherwise"

Wow... (4, Insightful)

Anonymous Coward | more than 5 years ago | (#27005067)

Guy walks through a security checkpoint in an airport.

Hello sir. May see ID?

Here you go.

Thanks. I see you have a backpack, may I check it?

Sure, no problem.

Oh, I see you have a laptop. I want to see what you have on it.

No, sorry, the material on it is personal. If you try and push me I can easily claim the 5th Amendment.

Ah, but you cannot because you initially cooperated with me when I asked for ID and wanted to searched your bag.


I know this isn't exactly what's going on here, but how long until it is?

Re:Wow... (1)

Sj0 (472011) | more than 5 years ago | (#27005177)

Yeah, next time I go to the US (I don't, because Americans are terrifying and amoral bastards who send foreigners to Syria to be tortured for months or years), I'll have to plead the fifth when they ask anything. "Sorry, going to have to plead the fifth on this one, because a court opinion shows that if I don't plead it now, I won't get another chance."

Re:Wow... (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27005405)

So I assume you're disavowing *everything* American then, and this will be your last post on /. mr generalize?

Re:Wow... (0, Flamebait)

FiloEleven (602040) | more than 5 years ago | (#27005643)

Seriously. You beat me to it.

Here's a hint: just because the powerful public people of a country do something bad doesn't mean that the entire population or even a significant portion of it share the same values or act the same way.

Though with such an attitude as exhibited by the GP, he's probably right to be terrified to come here.

solution: obfuscate (1)

buddyglass (925859) | more than 5 years ago | (#27005095)

Obviously I don't support child porn...but it seems like all this guy needed to do is obfuscate the encrypted files so that they don't look like encrypted files.

One word: (3, Interesting)

Locke2005 (849178) | more than 5 years ago | (#27005105)

Steganography [wikipedia.org]
Is "I forgot" or "I never knew the password in the first place" considered a valid defense? One of the problems with compelling people to produce passwords is that it assumes they know the password. Spending months in jail for failure to produce information you don't know would really suck.

Re:One word: (1)

arbiter1 (1204146) | more than 5 years ago | (#27005345)

it might work, if you said that from the start that you didn't know it but since he was pushing the 5th on it, it kinda makes it hard to believe it if he says he don't know it now.

Re:One word: (4, Insightful)

eosp (885380) | more than 5 years ago | (#27005363)

That question was posed at a conference at my university with some cryptographer. He grabs a piece of paper from his notes, tears a strip about three inches long up, and rolls that up. He takes a dry-erase marker from the board and colors the end red, tossing it at one student.

"What's this?" the student asked.

"That's your child's pinky. Now what's your password?"

Re:One word: (3, Insightful)

Toonol (1057698) | more than 5 years ago | (#27005597)

Yeah, because feds will kidnap and mutilate your children to get you to confess your password. Geez.

Re:One word: (1)

ratzmilk (137380) | more than 5 years ago | (#27005565)

Or, you provide the password. The authorities find nothing, so they change the password and accuse you of not providing the correct password.

Two different container objects (2, Interesting)

empesey (207806) | more than 5 years ago | (#27005185)

If I let a cop into my house, I do not have to give him permission to look into my bedroom or allow him to look in my dresser. So, how is that different from letting someone into my computer, but locking them out of particular directories or files?

Re:Two different container objects (1)

The Moof (859402) | more than 5 years ago | (#27005301)

In the same way a cop can search your car, but can't force you to open the lockbox in the trunk.

Makes no sense (2, Insightful)

russotto (537200) | more than 5 years ago | (#27005205)

Suppose the cops want to search my house without a warrant. Stupidly, I let them, and they don't find anything. Now a week later they want to search again, and I deny them entry. Following this decision, since I waived my rights when I co-operated once, I have to co-operate again. WTF?


Anonymous Coward | more than 5 years ago | (#27005207)

Never cooperate at any level to any investigator ever for any reason. I don't care if your as clean as the pope, never cooperate ever! Don't answer any questions don't say yes or no don't say anything but "I want a lawyer present for any questions".

Would the smartass approach work? (3, Interesting)

Locke2005 (849178) | more than 5 years ago | (#27005213)

I always set my password to "confidential". Then when they ask me what my password is, I can truthfully reply, "It's 'confidential'!" And when they try to put me in jail, I can truthfully say, "I told you what my password was!" (True story: many years ago, the admins at Amdahl UTS sent out an email to all developers stating "We've changed the root password for the system and we can't tell you what the new password is because it's a secret". I of course immediately tried logging in as root using variants of "asecret" for a password, and sure enough -- it worked!)

Re:Would the smartass approach work? (1)

pin0chet (963774) | more than 5 years ago | (#27005277)

It'd work for about a few seconds, or until the cops could perform a simple dictionary brute force attack.

I don't think this is new (1)

93 Escort Wagon (326346) | more than 5 years ago | (#27005219)

I seem to recall something like this happening way back in the 1970s - of course it didn't involve computer porn. But in that case, like this one, a person who initially cooperated with an investigation was not allowed to later reverse course and plead the 5th.

As soon as you've answered one question, I think you've essentially waived that particular right - assuming you were read your rights before any of this happened, of course.

Waived his right against self-incrimination... (4, Funny)

SlashThat (859697) | more than 5 years ago | (#27005223)

... when he initially cooperated? That's like saying that you wave your right for freedom of speech if you shut up for a moment.

Re:Waived his right against self-incrimination... (1)

sudotron (1459285) | more than 5 years ago | (#27005377)

...but if you're talking, haven't you waived your right to remain silent...

Re:Waived his right against self-incrimination... (1)

anothy (83176) | more than 5 years ago | (#27005453)

great, just what the libertarians need: another excuse to never shut up.

":-)" or something.

Precedent set? (1)

StuartHankins (1020819) | more than 5 years ago | (#27005227)

Sounds like he didn't have much of a choice. If it was in fact forced cooperation, wouldn't that fact have had precedence over everything else? Especially to tell him now that he cooperated a little he has to testify against himself (by providing the decryption key).

Don't get me wrong, child pron is indefensible and I personally feel he should be put in jail, but prosecuting him in this way opens up a kind of a slippery slope and I'd hate to see a precedent set. I worry about what could become of that.

Leaving the country (1)

fredbox (207869) | more than 5 years ago | (#27005285)

The upshot of this is you have no rights to leave or reenter the country. Forget about it, if you leave, just plan on not coming back because you left the constitution behind.

Not that there was much of it left.

RTFO (4, Informative)

Peyna (14792) | more than 5 years ago | (#27005317)

Seriously people, read the court's opinion. Nowhere does the court say it finds he has waived his Fifth Amendment rights because of his initial cooperation. Instead, the rationale is that because the government is already aware of what is on the hard drive (the border agent saw suspicious file names and then apparently saw actual images of child pornography while reviewing the computer when it was turned on), forcing him to hand over the documents is not a self-incriminating act.

Further, because they are documents already existed, they are not "testimonial" in themselves. The Fifth Amendment concern is with forcing the person to hand over the documents, because doing so may in effect be self-incrimination because the person is being forced to admit either that they have the documents or that the documents are real and exist. Neither of these is an issue, because the government already knows the documents exist and are real, and the defendant admitted to having them on his computer.

So, to sum it all up, the conclusion is not that the defendant has waived his Fifth Amendment rights, but rather, that forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.

Re:RTFO (0)

Anonymous Coward | more than 5 years ago | (#27005617)

Au Contraire,

This is a "He-Said/She-Said" argument whereby the Executive (branch of government) has alleged that they saw evidence of illicit materials on the defendants hard drive, but they don't have the actual proof in hand to use as evidence. Defendant, by providing them the alleged illicit materials in a decrypted form, is directly providing the Executive with incriminating evidence, thereby incriminating himself.

In this case, if the alleged illicit materials are actual illicit materials, then the defendant is being compelled to incriminate himself which is exactly what the 5th amendment is designed to protect against. Only, this time he is being compelled by a court order from the Judiciary.

Not enough information (1)

Locke2005 (849178) | more than 5 years ago | (#27005321)

Did he cooperate with the border agents before or after he was informed of his Miranda rights? As a general rule, you should always plead the 5th as soon as you are read your rights, whether you are innocent or not. IANAL, but I'm not sure if they can use your cooperation before they read you your rights against you in court.

Here's how it works (3, Informative)

g_adams27 (581237) | more than 5 years ago | (#27005329)

IANAL, but if I understand what I'm reading, here's how it works. (Lawyers, please correct me where I'm wrong):

The 5th amendment protects you from making testimonial statements that would incriminate you. What is testimony, then? It's basically saying something that the prosecutors don't know, or something that isn't self-evidently true. (The police and prosecutors may THINK you robbed the bank, but they can't compel you to admit on the witness stand that you did so, because that would be self-incriminating testimony from you that would clinch the case.)

In this case, however, the prosecution is well aware that the defendant has the information they want: namely, the password to the encrypted drive. They know this because he typed it in previously, in front of ICE agents. Therefore, by providing them the unencrypted contents of the drive, he is not providing new "testimony" - that is, when the defendant reveals that he does indeed know the password, it's nothing new. The prosecution already knows he owns the computer and that he knows how to access the hidden drive. Thus, the 5th amendment can't be used by the defendant to save himself from having to give the contents of the drive to the authorities.

If I'm not mistaken, the authorities can compel a defendant to open a locked safe when they know that person knows where the key is (or what the combination is). I believe the same thing is happening here.

Now, what if hypothetically he had a TrueCrypt hidden container on the drive? And what if the authorities were pretty sure that such a container existed, but couldn't be sure? Could they compel him to testify whether or not there IS a hidden container in the drive? I don't believe so - that would probably tilt the balance into "testimony", which would be protected by the 5th amendment. Ditto in the case of a file called "MYSTUFF.DAT" that the authorities think is probably a TrueCrypt encrypted volume, but can't be sure about. They can't force the defendant to confirm that suspicion.

In this case, the defendant was sunk because of his prior, freely-given revelation that 1) there was an encrypted drive on his PC and 2) he knew how to access it. By giving that information up, he gave up the farm. It's too late to plead the 5th.

Re:Here's how it works (2, Insightful)

g_adams27 (581237) | more than 5 years ago | (#27005511)

Following up on my own posting (and again, IANAL), here's the type of thing that the 5th amendment is designed to protect you against:

The act of producing documents in response to a subpoena may communicate incriminating facts "in two situations: (1) 'if the existence and location of the subpoenaed papers are unknown to the government'; or (2) where production would 'implicitly authenticate' the documents." Id. (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983)).

In this case, #1 doesn't help the defendant because the government knows that the files they're looking for are on the Z: drive of the defendant's computer. #2 doesn't save him either because he already authenticated the documents when an ICE agent viewed them at the border crossing. Thus, no 5th amendment protection.

One other point: the prosecution assumes the defendant knows the password to the encrypted Z: drive (a PGPDisk volume). That's a reasonable assumption (it IS his computer), and it's enough to tilt the balance in their favor and get this court ruling.

Where it would get interesting would be if the defendant claims that he doesn't know the password. ("My friend created and opened the Z: drive on my laptop, but I don't know how to access it once it's closed again"). Or whether he claims he forgot it.

Those are desperate claims, but still... he's pretty much either got to co-operate (and therefore reveal (again) the child porn on his laptop), or find some way to continue not to provide the password on any legal grounds he can.

We need a destruction password in crypt! (3, Interesting)

mlwmohawk (801821) | more than 5 years ago | (#27005411)

There should be a destruct password, if given at the password prompt, NUKES the contents of the drive!!!!

Police: What's your password?
You: Umm, let me think, oh! yes, "fr0b0zz"
[police enter password]

You: NO! Wait!!! NO!! That's the destruct password don't enter it!@!!

Too late.

Too bad, so sad.

Re:We need a destruction password in crypt! (1)

Calithulu (1487963) | more than 5 years ago | (#27005577)

Of course, since destruction of evidence isn't a crime. Brilliant!

Re:We need a destruction password in crypt! (1)

bugs2squash (1132591) | more than 5 years ago | (#27005625)

Isn't that called spoliation ?

Whoops (4, Insightful)

Hordeking (1237940) | more than 5 years ago | (#27005437)

sohp notes that "the order is not that he produce the key â" just that he provide an unencrypted copy."

Of course, that's putting the cart before the horse.

This probably won't fly in the SCOTUS. Even if it did, it would be quite impractical to enforce.

Take for example, a suspected drug dealer. He cooperates a bit with the police who want to search his house. They find no illegal substances. But they saw an empty baggie sitting in a drawer. They tell him to hand over the stash, because they know he has one. Without the stash, they have no case. He refuses. Eventually it gets to the point of the court telling him to "hand over the stash". Therein lies the problem. Without the stash, there can't be any charges. So he conveniently says again "I have nothing to show you." What will they do? Hurl insults at him? Even if there was some way they could get him in jail, the accused would be better off taking 6 months for contempt of court or obstruction of justice (really tenuous) than 99 years for having the stash.

This case is similar. The cops saw the images, then turned off the computer, which required a passcode for them to regain access. Now he's been ordered to produce an unencrypted copy of the data for them to use against him (not his password). I fail to see how those two are separate. Unless he has an unencrypted copy of the hard drive somewhere, this is going nowhere fast. Why? "Gee, your honor. With all of the stress of being in court and all, I seem to have forgotten the password to that hard drive. In fact, I don't remember what's on it, either."

They need the porn for to convince the jury beyond the shadow of a doubt. The cops might be able to testify they saw something, but for all a jury knows, they could be lying, or they may not be remembering things clearly. What will likely happen is that the SCOTUS will say "You can't retract self-incriminating evidence you provided on your own, but you can refrain from providing any more at any time. If the police are careless with evidence, you don't have to give them more of it."

Re:Whoops (1)

bugs2squash (1132591) | more than 5 years ago | (#27005647)

I always thought you could be locked up forever for contempt of court.

"You have the right to remain silent" (2, Insightful)

flyingfsck (986395) | more than 5 years ago | (#27005503)

is lawyer speak for: "Shut the fuck up!"

This poses an interesting problem. (3, Funny)

Ifthir (1446587) | more than 5 years ago | (#27005513)

How do we blame George W. Bush for this when Barack Obama is the president now?

How to deal with this (0)

Anonymous Coward | more than 5 years ago | (#27005551)

NOTE: Only works if you're innocent

Tell them that you can prove your innocence and will but that you must be fairly compensated for the defamation of this libelous slander and defamation of your personal integrity, plus the intrusion into your private life that will need to be done to prove these accusations false.

Tell them that if they are so convinced that he is hiding child pornography (or whatever it is) that they must prove that there is evidence showing what is there to be answered. This is to ensure that they do not go on a fishing expedition or look in places they have no expectation of finding the materials they believe to exist.

If they cannot do this, then there is not enough proof to justify the unconstitutional demands.

Add that there must be financial compensation. This compensation should come from the departments that maintain that there is something to find.

If they are so certain they will find something incriminating then they are risking NOTHING and so compensation of millions is no risk whatsoever.

However, if they do not find what they are looking for, this compensation MUST be paid.

This will ensure that court time (which costs millions) is not wasted like has been done here on poor intelligence.

Again, if the court and justice system is so convinced that there is a need to rummage through EVERYTHING, there is no loss to be considered and should be easily agreed to.

And if it turns out that someone is telling porkies a lot and making false accusation, this will be astoundingly easy to spot since even in a government department losses of tens of millions will not be possible to hide.

Blah,.. (0)

Anonymous Coward | more than 5 years ago | (#27005569)

Just use a notebook with Linux installed, and have it book to the CLI.
I bet not one agent would know how to use it or even know how to start X.

How can you waive a right? (1)

scorp1us (235526) | more than 5 years ago | (#27005637)

I thought all rights are in effect at all times. That's what makes them a right, right?

This is not a "copright", this is a legal, personal right between you and the government. Allowing any right to be waived, or implied o be waived is a slippery slope.

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