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Judges Rules In Favor of Forced Decryption

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Despite the impressions of America’s glass-half-empty types, our society tries to pride itself on the precept of “innocent until proven guilty.” That concept is Constitutionally protected through the Fifth Amendment, generally interpretted as protecting the accused from having to incriminate themselves.

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.

Pleading the fifth takes an interesting turn with modern day encryption where courts are wrestling over the matter of a defendant’s right to not decrypt data. Colorado Judge Robert Blackburn noted, “I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer” in a case against an alleged mortgage scammer. The accused encrypted her laptop with PGP whole disk encryption and authorities believe the evidence needed to secure conviction can be found within. Analogies have been made that courts may force the accused to provide keys to open safe deposit boxes or other physical safes and therefore must provide the passphrase to open a digital safe. Furthermore, authorities in this case have acknowledged they don’t require the key and will allow the accused to decrypt the files without divulging the key. In today’s world of the 99% versus the 1%, few folks would tend to side with a mortgage scammer (or the previous instances of encrypted pedophile drives). But the tinfoil hat crowd afraid of the Patriot Act’s reaches may soon wave the banner on judicially enforced decryption for anything. There may be something to the glass-half-empty type cynicism as the Fifth Amendment has routinely been bent over the past 160 years [pdf] to serve various eras’ needs.

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Information This article was edited after publication by the author on 05 Feb 2012. View changes.
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It's OK by Occams

It is a privacy invasion, but that is what courts do. Sometimes it sucks, but if you are not happy with that, then you have to change the law. Good luck with that. This law is fundamental, and goes right back to Henry II.

I think that if you are happy witht a court’s right to demand access to computer files, then you should not oppose its right to insist that they not be presented in an encrypted state.
Everything on the computer is really just binary representing some form of encoding of text, audio or video. Even ascii is encoded text, although everyone knows the code. PGP is just another form of coding, this one aimed at ensuring privacy, but the court should not have to concern itself with this particular form of coding since it already has the right to overcome privacy in relation to this material.

The subject should not have the right to withold this evidence by locking it in a cupboard, burning it, or encrypting it. Courts should not be allowed to decode coded evidence without the participation of the accused because this would destroy the integrity of the evidence and would break the chain of continuity.

By the way: that damn proverbial cup is just to big for its intended application.

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RE: It's OK by scottb

It is a privacy invasion, but that is what courts do.

The issue isn’t the privacy invasion, it’s the fact that it requires the defendant to incriminate himself, which the 5th amendment prohibits.

The cops are perfectly welcome to crack the encryption, but to compel a defendant to tell them his passphrase is little different than compelling him to tell the truth when asked a direct question. For the same reasons the court doesn’t do the latter, it shouldn’t do the former.

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RE: It's OK by Occams

I don’t agree. I think encrypting evidence has the same effect as burning it. Police and courts compel people to hand over private papers all the time, even if (in fact because) they will be incriminating. Destroying evidence is a crime.

Ideally, the defendent should do the decryption in the presence of an officer of the court because there are very strong rules about who has had access to evidence, and therefore the opportunity to tamper with it. Otherwise, how could the defendant know that third party decryption did not add additional key words like “NOT”, or changed numbers in aliby times.

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RE: It's OK by scottb

I don’t agree. I think encrypting evidence has the same effect as burning it.

That’s obviously nonsense — data that’s been burned is destroyed beyond recovery. Encrypted data isn’t. It’s a bad analogy.

You might make the argument that the defendant was trying to destroy the evidence if it were encrypted after the prosecution requested it, but this was a case where the data was kept on a drive that was routinely encrypted.

I think the relevant point is that the court is welcome to demand the physical media, but the defendant should have the right to refuse to speak the password on the grounds that it could be incriminating. That’s the protected speech, not the contents of the media.

If the government were to uncover the key through other means, they’d have every right to access it, but compelling the defendant to speak against their own interest is, IMO, in violation of the fifth amendment.

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RE: It's OK by Occams

Not nonsense, common sense!
Burning is a very good analogy. Submitting a pile of ashes in response to a court order would be blatant contempt.
I was arguing the general case rather than the particular.

I think you are making a very fine point of law there which has some faint support, but it should be tested according to the greater public interest. However, taking it at face value, it would not be necessary to demand that the defendant speak the password, only that he hand over documents in a form that can be used by the court. If thery are already encrypted, then the owner obviously decrypts them when he uses them, so they are always available to him in a decrypted form that can be used by the court.

If the incryption is near perfect, then it is the same as destroying the evidence because it it putting it in a condition where it cannot be recovered for use as evidence.
I think the right to remain silent is intended to provide some protection against police bullying or perjury.

By order of a court, his house may be searched and if he has locked the door he will be required to open it.

Clearly you think that this is the thin end of the wedge: making other forms of privacy intrusion more likely in the future. I think that the law is well able to deal with each one of them that comes along in a transparent fashion. Perhaps this one does need a the clarification of a precedent, an amendment, or a regulation. The greater public good in my opinion is to avoid punishing the innocent and to discover guilt. I find it hard to imagine a situation in which an innocent party would insist on hiding evidence when there was a danger of the wrong person being convicted. Merely embarrassing material that is irrelevant to the case can be protected by the rules of evidence. THis kind of evidence is always screened by the judge and both counsel before being presented in court.

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RE: It's OK by scottb

Burning is a very good analogy. Submitting a pile of ashes in response to a court order would be blatant contempt.

Yes, unless it were possible to fully reconstruct the original object from the ashes. That’s where your analogy falls over and it’s why it’s a bad analogy.

I was arguing the general case rather than the particular.

Which is the central problem in arguing by analogy.

Here, let me offer you a different analogy — one that’s more accurate.

Back in the first half of the last century, it was common for bookies to keep track of their bets by writing them in a literal book, but in coded form. If the police arrested the bookie and seized the books, the courts couldn’t compel him to translate the books out of their coded form, because that would require him to further incriminate himself.

If the government could break the code — which they often could, they weren’t today’s kinds of encryption — then the books could be used as evidence against the defendant. If not, they had to rely on what evidence they could find.

The analogy is pretty close — a defendant has an aide de memoire that’s encoded in a way that only he can read it. It’s wrong for the court to compel the defendant to incriminate himself.

Bear in mind that this particular case hasn’t been decided by the Supreme Court. It’s in the District Court of Colorado, and it’s likely this particular issue will never be heard by SCOTUS. Another case, In re Boucher, heard by the District Court of Vermont, specifically held that the fifth amendment protects a defendant from revealing a password — or even the existence of a password — if doing so could be deemed a self-incriminating act.

I read the court order issued by the judge in this particular case. The order to produce the password was explicitly accompanied by an offer of immunity that precluded the prosecution from using her act of producing the unencrypted contents of the drive as evidence against her. The government had evidence that already tied the defendant to the contents of the drive, so the judge ruled that this specific case was more like a subpoena for incriminating documents held by the defendant than it was like asking for her password. I can see that perspective in this particular case.

In general, I still hold that, as in Boucher, the fifth amendment prohibits the government from demanding a password if doing so is incriminating.

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RE: It's OK by Occams

If Boucher is a valid precedent then I am happy with that for state offences.

I hope that it would go the other way when tested at the federal level because there the crimes are more serious and the offenders more devious.

All cases are particular, but precedents should be general, or at least apply to other cases with similar circumstances.

I just hate the idea that every sleazy little rat criminal can defeat law enforcement by encrypting his hard drive. Contrary to popular belief, all crimes do not leave evidence, and many more crimes do not leave admissible evidence. We should try harder not to let offenders escape the consequences of their crimes. Our freedom is infringed by criminal acts against us and in my opinion that is worse than a loss of privacy that might perhaps happen if I became a suspect in a criminal investigation.

Perhaps I am just browned of because I am currently trying to sell a boat on-line and I have had three advance fee fraud attempts in the last two days. These pests are so confident that they won’t get caught because they believe that they are smarter than the law. It appears to me that they are correct.

the judge ruled that this specific case was more like a subpoena for incriminating documents held by the defendant than it was like asking for her password. I can see that perspective in this particular case.

That is my take on it too, and I think it could apply generally. A subpoena would be required to discover documents anyway.

I know that you place more value on constitutionally protected freedoms than I do Scott. I have never claimed to be a liberal in the sense that I am obsessed with maintaining my constitutional freedoms, even when the impact on society can be quite severe (compare with gun control) . I merely claim to be an anti conservative, and in a sense you are taking a conservative line on this even though yours is a very liberal view on another plane.

So I think we should just agree to disagree.

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RE: It's OK by scottb

If Boucher is a valid precedent then I am happy with that for state offences.

Boucher was at exactly the same judicial level as this case. Both were rulings in federal level district courts, just different districts.

All cases are particular, but precedents should be general, or at least apply to other cases with similar circumstances.

Boucher sets a pretty strong precedent. It sets relatively narrow circumstances under which a defendant can be made to decrypt their data. In reading the logic behind it, I’m not sure I entirely agree — I’d tend to restrict it even a bit more — but I’m fairly satisfied.

Frankly, this new case doesn’t appear to have changed anything with respect to the interpretation of the fifth amendment with regard to encryption keys.

We should try harder not to let offenders escape the consequences of their crimes.

There are two fundamental obstacles to that, both of which have to be clearly addressed.

First, there are the false positives — cases where the defendant is actually innocent, but the system still finds them guilty. There’s plenty to motivate the state to get guilty verdicts, regardless of the truth of the matter — district attorneys are often elected officials and want to be able to show their “tough on crime” credentials. Performance is measured in terms of “successful” (that is, “guilty”) verdicts.

Second, is the risk of abuse of government power. Giving more power to the government to interfere in the lives of private citizens is always hazardous. We stand on a slippery slope, at the bottom of which is a police state. Constraints on government powers is one of the ways we hold on to our freedoms.

This is why we, as a society, put such strong constraints on how the government prosecutes crime — the presumption of innocence, due process, rules of evidence, entrapment laws, and, yes — the fifth amendment. It’s important that we successfully prosecute criminals, but it’s at least as important that we don’t prosecute the innocent in the process (maybe more so).

I have never claimed to be a liberal in the sense that I am obsessed with maintaining my constitutional freedoms, even when the impact on society can be quite severe (compare with gun control).

You lost that argument fair and square, yet you keep hinting that yours was (is) a reasonable position. The “impact on society” of our current “lack” of adequate gun controls is minimal, as the evidence I gave clearly showed. You certainly never offered any counter argument.

I actually think that we’re in a similar situation, here. You’re arguing that we need to be tougher on crime, but I think the real facts are that we’re plenty tough enough on crime. It’s just confirmation bias — between the media attention given to a few high profile cases and the prevalence of crime drama on TV, we’re encouraged to think that the justice system is broken, that criminals routinely get off on technicalities.

The reality is that relatively few violent crimes go unsolved, and most of them are successfully prosecuted. Overall crime rates are way down, too. This urge you feel that we need to “fix” something is just misplaced. It ain’t broke.

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RE: It's OK by Occams

You lost that argument fair and square, yet you keep hinting that yours was (is) a reasonable position.

Yes, I stopped arguing with you on gun control because I accepted your case that there is no strong statistical evidence of an exceptional number of homicides in the USA due to the use of privately owned guns.

Mine is a reasonable position because many reasonable people in responsible positions in local government have it. For example the mayors of NYC and other big cities who might have some experience on the impact of gun crime on a great American city.

I still think that deaths by homicide are not the only way to measure the overall impact of slack gun laws on our freedom to enjoy life and pursue happiness. There is an insidious effect on our feeling of security for our family deriving from knowing that any fool or insane person can easily get a gun, and I would still prefer a society where that was made as difficult as possible. I have lived in such a place, Australia, and it works just fine.

The reality is that relatively few violent crimes go unsolved, and most of them are successfully prosecuted.

Can you prove that. I would be most surprised if it is true. Police services have a way of resolving most reported crime but many of us believe that there is a great deal that goes unreported among criminals, gangs, etc. Even if that were true for violent crime it is not highly relevant to the encryption argument. It is in the white collar area where encrypted documents are most likely to be involved. Tax evasion and securities fraud would be examples where evidence of criminality is most likely to be found in encrypted documents.

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RE: It's OK by scottb

Mine is a reasonable position because many reasonable people in responsible positions in local government have it.

That makes it a common position, not a reasonable one. By definition, when a reasonable person is confronted with data that shows his position to be unsupported, he changes his position.

Can you prove that. I would be most surprised if it is true.

According to the FBI’s 2010 data, 64.8% of murders are solved (either they arrest the subject or they identify a person who they would arrest if they could). According to the Bureau of Justice Statistics, 70% of defendants charged with murders are convicted.

I thought the numbers would be higher than that, but I still think those are decent numbers. Of the 30% of accused murderers who are not found guilty, some percentage of them are guilty — those are the false negatives in our system; the ones you’d like to get rid of.

Remember though, to keep it in context, we have to ask what it costs us to get these rates. How many people are innocently convicted? How many innocent people are damaged by police investigations?

It’s extremely difficult to estimate those numbers. We know for certain that there are some 250 people on death row who are (based on subsequently obtained DNA evidence) probably not guilty. The Innocence Project cites a study that indicates about 3-5% of convictions for capital crimes are wrongful convictions.

It’s virtually certain that making convictions easier to get will increase the number of wrongful convictions, too. I think we need to concentrate on lowering the wrongful conviction rate before we spend much effort on convicting more people.

Even if that were true for violent crime it is not highly relevant to the encryption argument.

I’m no longer trying to address the issue of encryption keys — the OP article turns out to be a non-issue, as it didn’t change anything, and we’re in rough agreement on Boucher, which set the precedent, anyway.

What I’m trying to address is your vague feeling that “something must be done” about crime. I think scare tactics about crime are a great way to stir up controversy — it improves sell rates on products advertised during news shows and it helps politicians generate great sound bites. But I don’t think that actual crime rates are anything we should be freaking out over.

Crime rates have been dropping for years. I’ve got no problem with a carefully studied approach — where clear scientific evidence shows some new tactic can improve things — but I’m not at all interested in the “something must be done” approach, where we’ll try anything, just because it’s “something”.

Years ago, then AG John Ashcroft insisted that the government absolutely needed warrantless wiretaps to improve their ability to fight terrorism. My immediate response was, “too fucking bad.” If we turned the US into a police state, it would vastly improve their ability to fight terrorism, but that’s not an acceptable trade. Nor was warrantless wiretapping.

Nor are any of these “something must be done” tactics. The problem isn’t crime, the problem is the “something must be done” attitude.

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RE: It's OK by Occams

That makes it a common position,

“Reasonable” is a term used often in jurisprudence. I think a belief is accepted as being reasonable if a reasonable person could have it. I tried to show that, since a large number of respectable people are concerned about gun control, mayors of major cities, then it must be a reasonable belief.

According to the FBI’s 2010 data, 64.8% of murders are solved (either they arrest the subject or they identify a person who they would arrest if they could). According to the Bureau of Justice Statistics, 70% of defendants charged with murders are convicted. I thought the numbers would be higher than that, but I still think those are decent numbers.

I don’t think that 70% of 64.8% is so great an achievement. About half of the killers are getting away with it.

those are the false negatives in our system; the ones you’d like to get rid of.

Not entirely, there are also those who are not charged due to lack of admissible evidence.

But we are not so far apart. I believe that the intelligence (counter terrorism and espionage) investigators have been given far more privacy intrusive powers than they should have, and that this was the result of a panic reaction, and a desire to instil fear in the public for election purposes.

Fraud is increasingly carried out using computers, and it often targets the hard-earned life savings of elderly people who have attempted to provide for a comfortable retirement. This is an extremely personal crime that leaves decent folk feeling like they have been raped. It is just not good enough for the police to have to say “too bad, the only evidence is likely to be on his computer, but we cant touch that”. After all, in a rape case, we can use DNA evidence from semen, and that is about as private as you could get. These fraudsters are not fools, so if encryption will protect them, they will always use it.

My feeliongs on this are not in the panicky “something must be done” mode. Rather, I think that there has never been a concerted attempt to crack down on this type of crime. THis is probably because it takes time and resources that will get better results if deployed on crimes that are easier to prove. Well, these crimes would be easier to prove too if we give investigators access to the evidence.

There are many other crimes where most of the evidence is left on computers, In my opinion none is more damaging than the pursuit of children for sexual exploitation. A large part of hcrimes is invariably committed in cyberspace and evidence is left in the form of photo collections and on-line transactions with certain web sites. I would defend any parent who goes into a panicky something-must-be-done mode over protecting their children from this.

Remember that absence of evidence is not evidence of absense, and there will most likely be an absence of evidence if encrypted computer files cannot be examined.
I really think that from now on the presumption that a crime will leave evidence will only be valid if evidence left on computers can be used.

I don’t want us to trend towards a police state either, but the opposite direction is a lawless state, and that is just as unacceptable. We need to achieve a balance, and in my opinion the trend towards computer based crime is drawing us in a direction where we need to soften some of our constitutional privacy protections in order to maintain the balance.

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RE: It's OK by scottb

“Reasonable” is a term used often in jurisprudence. I think a belief is accepted as being reasonable if a reasonable person could have it. I tried to show that, since a large number of respectable people are concerned about gun control, mayors of major cities, then it must be a reasonable belief.

You gotta be kidding me.

The “reasonable person” notion in jurisprudence is almost entirely irrelevant here. It’s used to decide whether an action was negligent — if the actions a person took or failed to take showed appropriate prudence.

Now, if an actual negligence case were to hinge on whether a reasonable person would hold this belief, I think you’d be in trouble. If you’ve been shown that a belief is false, and you still act on it, you’d be liable for the consequences.

But forget that, it’s not the appropriate standard, here. The term “reasonable” means “having sound judgement; agreeable to reason”. The laws of reason say you shouldn’t believe in things unless you’ve got a good reason to — you offered your reasons, and I showed them to be invalid. A reasonable person changes his beliefs.

Hell — in that previous discussion, I even addressed the fact that your particular examples of public figures are biased. Mayors and police chiefs would find their jobs easier and safer if guns were illegal, regardless of whether it actually made the rest of us safer or not. So even relying on their judgement is unsound reasoning.

I don’t think that 70% of 64.8% is so great an achievement. About half of the killers are getting away with it.

Actually, the numbers don’t work that way.

In theory it could be that only 60% of the people arrested are actually guilty, so the 64.8% is effectively 100% effective prosecution of guilty people, and another 4.8% wrongful imprisonments.

We know that 30% of murder cases are unsolved (no arrest), and we know that 35.2% of people arrested for murder are found not guilty — but you have to account for things like self defense.

It would take a while to dig up more detailed information. I just found this document at BJS that shows more detailed data, but I haven’t taken the time to go through it.

The data I’ve been looking at, though, suggests that the judicial system does a pretty good job, and that the crux of the problem is finding and arresting the perpetrators. But that puts the problem squarely in the areas I’m concerned about — to improve those rates means granting the police more powers, moving ever closer towards a police state.

It’d be easy to find the guilty if we put police cameras in every building and gave up all of our privacy, but I hope nobody would stand for it. In my personal opinion, the government has shown over and over that it can’t be trusted with more police powers.

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RE: It's OK by Occams

The “reasonable person” notion in jurisprudence is almost entirely irrelevant here. It’s used to decide whether an action was negligent — if the actions a person took or failed to take showed appropriate prudence.

As I remember it “reasonable” came up this time in the context of favoring gun control. I really don’t want to start that debate again because we have gone over that ground too often, but you have certainly not proven that a belief that guns are dangerous is not reasonable.

I conceded that you did demonstrate that available statistics do not show that there is a statistically significant number of gun homicides in the USA that can be attributed to our generally slack private gun ownership laws. That may be reasonable proof for a scientific mind like yours, but let me assure you that there are millions of reasonable Americans who, even after they have had that explained to them, would still believe that guns are so dangerous that access to them should be well controlled.

It is rational to believe that hand guns are dangerous because they have no other purpose thant to inflict (or threaten to inflict) painful and usually fatal wounds on human beings. If they wern’t a dangerous tool there would be no point in them.

you offered your reasons, and I showed them to be invalid.

No you didn’t. there is more to being reasonable than statistics. If mayors are biased about this it is probably due to the fact that it is good for their electoral prospects because there are so many voters who share that view. Sure, a common belief is not necessarily reasonable to science and there are many examples where the common thinking has been shown by science to be wrong. However, a court is not made of scientists but legally trained people who are trying to interpret the meaning of laws in terms of the intention of legislators: and that was most likely to follow the will of the people. They are unlikely to conclude that a commonly held belief is unreasonable.

Belief in God is not scientifically sound, but the courts think it is so reasonable that they prefer witnesses to swear on a Bible. I think you have to score me positively on that point Scott. :)

When I was researching the death penalty I think I found that something like 95% of appeals against it are upheld. Some (unknown to me) percentage of these would have been due to invalid evidence, or interpretation of it. For me, one of the prime reasons that the death penalty is so wrong is because our justice system is simply not sufficiently accurate to support an irrevocable penalty. One of the reasons for that is that strong evidence of guilt or innocence can sometimes be ruled inadmissable – leading to patently unsound (everyone knows) convictions or dismissals.

Like you, I believe that some of this is tolerable if the inadmissability derives from reasonable privacy protection linked to constitutional rights. However, I am sure that I would not hink that way if I had been wrongly convicted, because execution is a very personal and private matter in particular cases. A balance is required and we are on opposite sides of the line (but both sides of that line are concerned with preserving freedom). I think that being required to surrender documents held on a computer in order to ensure a good result in a court case affecting the liberty of an individual is one of the freedoms that we can afford to sacrifice in order to achieve the balance. More than that, I believe that modern communications is so increasingly dependent on electronic documents that it will eventually completely knacker the judicial system if we don’t allow this.

It’d be easy to find the guilty if we put police cameras in every building and gave up all of our privacy, but I hope nobody would stand for it. In my personal opinion, the government has shown over and over that it can’t be trusted with more police powers.

Street cameras would make another interesting debate. I certainly feel more free at night when visiting a strange city like London because there are cameras everywhere, and any violent people know that there will be strong evidence against them. I might feel differently if I were a Londoner, but I am not sure because I actually have nothing to hide and I do like to move about alone at night: so my loss would be theoretical while my gain would be real. I actually find it hard to imagine how police could misuse a street photo of me. I can imagine how someone like say Newt Gingrich could be blackmailed using a photo of him exiting a brothel, but somehow I am not too concerned about this kind of loss of liberty. Cameras don’t lie, but they can cause the need for a lot of explaining.

That’s obviously nonsense — data that’s been burned is destroyed beyond recovery. Encrypted data isn’t.

Not if the defendent “doesn’t remember” the key. Or perhaps encrypted with a dongle and lost it.

I think the similarity is valid because the encryption denies the evidence to the court in the same way that burning it would.

If the suspect cannot be forced to decrypt it for the court, then it is irrelevant whether he can decrypt it for himself or not. It is “beyond recovery” as far as the court is concerned.

It is “beyond recovery” as far as the court is concerned.

Even that is false. Any encrypted data can be recovered — it just takes a long time. Longer than the court is willing to spend, quite probably longer than the statute of limitations runs, possibly longer than the court will exist.

The data is still there. But nobody is really arguing that the court has the right to any data that exists. If we could scan your brain and extract thoughts, we would treat that as violation of the fifth amendment, and prohibit it to the courts. In the modern world, one’s laptop functions as an extension to the brain. Demanding a defendant turn over the key is analogous to scanning their brain.

At some point in the future, it’s quite likely that laptops will be replaced by more intimately held equipment — many people who use them very heavily may even opt to have them surgically implanted. That even further blurs the line.

This just isn’t cut and dried, and the government needs way more than a fishing expedition to be granted access.

Even that is false. Any encrypted data can be recovered — it just takes a long time. Longer than the court is willing to spend, quite probably longer than the statute of limitations runs, possibly longer than the court will exist.

Then, as far as the court is concerned, it is of no more value than a pile of ashes.

Demanding a defendant turn over the key is analogous to scanning their brain.

That is a long shot. If the lap top is a tool used to commit a crime, then the court should have a right to examine it for evidence of guilt.

This just isn’t cut and dried, and the government needs way more than a fishing expedition to be granted access.

I agree that the police or court should have a sound basis for assuming that there is data on the computer.

Then, as far as the court is concerned, it is of no more value than a pile of ashes.

Nope. This is still plain wrong.

You’re attempting to reason by analogy, here, but analogies fail where they don’t match the original. To be precise, the value would be the same as that of a pile of ashes that the defendant could reconstitute by speaking a magic word.

By making this false analogy, you’re begging the question — you pick an analogy in which the defendant cannot restore the data, and pretend it’s the same as one in which the defendant can but chooses not to. It’s a false analogy.

That is a long shot. If the lap top is a tool used to commit a crime, then the court should have a right to examine it for evidence of guilt.

I’m trying to give you an analogy that actually matches the circumstances. Sure, we don’t have this tech today, but it’s not that far in the future, and my bet is that the courts won’t be getting access to brains, either.

I agree that the police or court should have a sound basis for assuming that there is data on the computer.

They need a lot. That’s the point of the ruling in Boucher and even in this case. They can’t just say, “oh, it’s encrypted? Turn over the key.”

Nope. This is still plain wrong.

Then I really don’t understand your point. What does it matter if the suspect could reconstitute the data if he is allowed to refuse to do so. How is that different from burning it. THey are analagous because both the pile of ashes and the encrypted drive represent a substance that was once evidence but is now in a form where it cannot be used by the court.

About the tool argument, here is another analogy I am sure you won’t like either. If a knife is used to commit a crime it can be examined for engravings, fingerprints, blood and DNA to incriminate a suspect. So if a laptop is used to commit a crime it should also be able to be scanned for fingerprints, and DNA, names, and any data on the HD. It would be a crime, tampering with evidence, to for the suspect to wipe the fingerprints off or clean any traces of human cells, or scrape his name off the knife. Equally it should be the same crime to use encryption to “wipe off” the potentially incriminating data. Computers are just tools, not some magic new technology that is above the law.

They need a lot.

In most cases it woud be obvious that incriminating documents were produced and or stored on a computer. So if a genuine suspect has a computer then, it automatically becomes just as suspect as he is. That should be enough. This is the same test as for searching a car or a home. If they don’t have a valid reason for suspecting him then
they can’t do it. It is pointless to have a test that is so strong that the investigators have to be able to prove guilt by other means before they can do such a search.

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some new updates by brho

ars article

main issue seems to be if the gov’t already has evidence that you have incriminating evidence on the HD (like a recording of you admitting it). still, definitely not resolved completely.

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The most important factor in buying my next car is?

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