Slashdot Log In
Judge Rules Man Cannot Be Forced To Decrypt HD
Posted by
kdawson
on Tue Aug 19, 2008 05:21 PM
from the cold-dead-fingers dept.
from the cold-dead-fingers dept.
I Don't Believe in Imaginary Property writes "In Vermont, US Magistrate Judge Jerome Niedermeier has ruled that forcing someone to divulge the password to decrypt their hard drive violates the 5th Amendment. Border guards testify that they saw child pornography on the defendant's laptop when the PC was on, but they made the mistake of turning it off and were unable to access it again because the drive was protected by PGP. Although prosecutors offered many ways to get around the 5th Amendment protections, the Judge would have none of that and quashed the grand jury subpoena requesting the defendant's PGP passphrase. A conviction is still likely because prosecutors have the testimony of the two border guards who saw the drive while it was open." The article stresses the potential importance of this ruling (which was issued last November but went unnoticed until now): "Especially if this ruling is appealed, US v. Boucher could become a landmark case. The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for the last decade arguing the merits of either approach."
Update: 08/19 23:49 GMT by KD : Several readers have pointed out that this story in fact did not go unnoticed.
Update: 08/19 23:49 GMT by KD : Several readers have pointed out that this story in fact did not go unnoticed.
Related Stories
[+]
Your Rights Online: Encryption Passphrase Protected by the 5th Amendment 537 comments
Takichi writes "A federal judge in Vermont has ruled that prosecutors can't force the defendant to divulge his PGP passphrase. The ruling was given on the basis that the passphrase is protected under the 5th amendment to the United States Constitution (protection against self-incrimination)." The question comes down to, is your password the contents of your brain, or the keys to a safe.
Submission: Judge Rules Man Cannot Be Forced to Decrypt HD by Anonymous Coward
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
The devil is in the details (Score:5, Insightful)
"thousands of images of adult pornography and animation depicting adult and child pornography."
I know that TFA is about encryption and the rights to passwords but I think the phrase above is far more interesting. That quote could be misleading, but what if the Border Enforcers didn't find any photographs or videos(hell, any evidence at all)of real human child exploitation?
:)
If they are able to legally get the key and crack the drive, and all they found was animation, then maybe they should just give him a warning and and call him a "perv"...especially if he has "thousands" of files and not a single one is "real".
By the way, those of you who fantasize about your wife or girlfriend in a schoolgirl outfit are also pervs
Re:The devil is in the details (Score:5, Funny)
Parent
Re:The devil is in the details (Score:5, Funny)
Parent
Re:The devil is in the details (Score:5, Funny)
What does that make us who may have a girlfriend who dress in school girl outfits for us?
lucky bastards?
Parent
Re:The devil is in the details (Score:5, Funny)
Total nerds? Freaks? Transvestites? Gender benders? Have to say it's fun, though.
Parent
Maybe you should look at the Protect Act? (Score:5, Informative)
http://en.wikipedia.org/wiki/PROTECT_Act_of_2003 [wikipedia.org]
I knew that I read this somewhere... Prohibits computer-generated child pornography when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code).
Parent
Re:The devil is in the details (Score:5, Informative)
Parent
Re:The devil is in the details (Score:5, Funny)
What I wear while fantasizing about my wife is none of your concern.
Parent
Re:The devil is in the details (Score:5, Informative)
http://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalition [wikipedia.org]
Parent
Re:The devil is in the details (Score:5, Insightful)
Yes, the law is that the image must of of a 'real' child for it to be child-porn. But last year I was reading an article where prosecutors were switching from having experts go on the stand to 'prove' that the images are real, to just saying that the jury is competent to decide if the image is real or not [even though everyone knows that CG images can be so realistic that it can be difficult/impossible for an expert in digital imagery to determine if it's 'real' or not]. So, basically prosecutors are going for jury-sympathy, that the guy is a perv and should be locked away, whether or not the image is CG. Not that I have a problem with this, as this is the kind of distinction that makes the problem worse, but it can also wind up dragging in 'artistic' images as well.
Parent
Re:The devil is in the details (Score:5, Funny)
-So your honor, this proves aliens do exist and the government is covering it up!
Parent
Re:The devil is in the details (Score:5, Insightful)
Naah. Society has lost it's mind when it comes to children, period. There's some sort of popular myth that started with the Baby Boomer generation that children need to be protected from everything. I'm not saying that sexual abuse of a child is ever right, but I'm saying that we have come to hold this purported "innocence" as sacrosanct, much to the detriment of society in general, as we have raised a generation of kids unable to deal with even getting a job on their own [msn.com]. The sooner we realize that kids don't need coddled, and need to be educated, this shit will go away by itself for a large part.
I'd love to post this signed in, but I'm afraid that in the current climate, people will start hunting me down as some kind of pedophile (which is the new version of the word "witch", "commie", or "fag", depending on what era you're from). An unassailable accusation that you have no hope in hell of defending yourself against, even if there is no truth to it.
Parent
Re:The devil is in the details (Score:5, Insightful)
You're a true anonymous coward. I'm perfectly happy saying that the entire system is completely screwed, and I'll be damned if I'm going to become anonymous.
An example of the absolutely screwed up laws in the UK : It is perfectly legal for anyone to screw a 16 year old girl, any way they want. However, if after they banged her every which way, they drew a picture of her naked and gave it to her, they can be done for distributing child pornography and put away for god knows how many years. I'm perfectly happy to say that this is fucked up legislation, and if you're not happy to come out and say that publically, then you're part of the problem.
Before you say this could never happen, something like this did happen somewhere in the US (I don't remember any exact details). It was a state where the age of consent was 16, and two 17 year old partners got busted for sending naked images of _themselves_ to each other. They got community service and put on the sexual offenders register for life. This is a farce, and the more people who say it is a farce, the quicker it will get fixed.
Parent
Re:The devil is in the details (Score:5, Insightful)
Please don't be so quick to judge someone simply because you are comfortable revealing your identity (Mr. Smauler? S. Mauler?) while they are not.
Parent
Re:Man, this is _so_ wrong. (Score:5, Insightful)
The reason to want to be anonymous is not cowardice. The reason is that the repercussions are not acceptable.
This myth was dispelled long ago, one example is gorilla warfare. Europeans thought it cowardly to hide from your opponents instead of facing them openly on a field of battle. It wasn't cowardly, it was tactically sound.
The same is true of avoiding prosecution by unjust government and preventing those whom you are criticizing from discovering your loved ones.
The difference between the AC and the non-AC? The AC legitimately believes there are people out there fear. The non-AC just likes to talk conspiracies.
Personally, I just think our government lacks the resources to track individual slashdot posters on a routine basis... so far.
Parent
Re:Man, this is _so_ wrong. (Score:5, Interesting)
I'm going to kill the president.
Parent
Re:Man, this is _so_ wrong. (Score:5, Funny)
Parent
Re:The devil is in the details (Score:5, Insightful)
And this, in a nutshell, is why it is judges who set the punishment for offenders and not victims or relatives of victims.
Parent
Re:The devil is in the details (Score:5, Informative)
Actually, child pornography is such a witchhunt that even animated child pornography is illegal.
Actually, It's not. Here's a quote from Wikipedia's listing under Child pornography [wikipedia.org].
Child pornography may be simulated by the use of computers[13] or adults made to look like children.[14] For simulated child pornography that is produced without the involvement of children, there is some controversy regarding whether or not such simulated child pornography is abusive to children. The legal status of simulated or "virtual" child pornography varies around the world; for example, it is legal in the United States, it is illegal in the European Union, and in Australia its legal status is unclear and so far untested in the courts.
Parent
Re:The devil is in the details (Score:5, Informative)
Parent
Re:The devil is in the details (Score:5, Funny)
Parent
Re:The devil is in the details (Score:5, Insightful)
Parent
of course (Score:5, Funny)
Border guards testify that they saw child pornography on the defendant's laptop when the PC was on
wow, so cops testify that it's true? that's good enough for me!
Re:of course (Score:5, Interesting)
I also doubt that a "conviction is still likely", unless they have some other material to show. Convictions in these cases are almost always due to the shock value created by showing the dirty films and pictures to the jury. If they cannot recover the images and movies, they will actually have to cover their burden of proof a lot more than prosecutors are used to in this case, and the defense might actually have a shot.
If the jury actually thinks about the fact that the only evidence is what some cops say they saw, but can't prove. If the prosecution somehow gets to show "similar images" or some such nonsense, the defense is hosed.
Parent
Re:of course (Score:5, Insightful)
Parent
Re:of course (Score:5, Insightful)
Sounds good, but I think the estimate was that there's at least 10,000 federal laws -- and so no single person could possibly know them all.
So while the police are combing through your hard drive, and while they don't find any child pornography, they DO find a picture of you holding a baby bird -- and it turns out that some 1856 law made illegal to handle this type of bird without a permit. And here's evidence of you violating the law.
Or, perhaps they don't find any child pornography ... until they scan every sector on the disk and find some thumbnail of some picture of a naked 8 year old girl that was deleted 18 months ago. If they'd dug deeper, they might have learned that that was from getting redirected to a child pornography site in Romania by some typo-squatter, which you immediately closed and never visited again -- but the DA is up for re-election, and he doesn't want to give up this new feather in his cap, the child pornographer he just took off the street. He doesn't care that you're innocent, only that you're helping prove that he's tough on child pornography.
No, cops and vampires are best not invited into your home, or your hard drives. Even if proving perjury is `priceless'. (And really, it wouldn't prove perjury. The cop would just say `I guess I was mistaken. My bad.' Though he probably wouldn't even say that.)
Parent
People really are stupid (Score:5, Insightful)
Turn *off* your laptop before going through customs.
Turn off the GRUB menu and change the default key combination to have it come up.
Have a WinXP install to boot up into and set it as the default boot option.
Strong cryptography is lovely but it is not for idiots.
Re:People really are stupid (Score:5, Insightful)
Parent
think about the children! (Score:5, Insightful)
In any case, it is good to see judges in the US (or anywhere else) making into the news for taking the right stand regarding governmental search limits.
Wow...anyone know what happened to him? (Score:5, Interesting)
Uh-Oh (Score:5, Insightful)
The phrase "given the specific facts of this case" gives me chills in this context. As we all know, kiddie porn is, along with terrorism and drugs, one of the three Prime Evils of American jurisprudence and public opinion, the unholy trinity that justify any and all measures in their eradication.
In short: Why, why does our potential landmark 5th amendment case have to be a kiddie porn case? I'm no fan of child pornography; but it would be an absolute disaster if, thanks to the vociferous moral condemnation that such a case always involved, we end up setting a dangerous precedent concerning the 5th amendment and crypto keys/passwords.
I think it involves no hyperbole to say that the crypto key issue is probably the most important 5th amendment related question that technology has yet raised(mindreading tech will probably top it, when it becomes available). I'd hate to see this be yet another decision chiseling away at our constitution, just because some punk likes kiddie porn.
Re:Uh-Oh (Score:5, Insightful)
Because if your rights and freedoms do not stand up when applied to the worst of the worst then they most likely won't stand up when applied to you.
Parent
Anti-free-speech cases are ALWAYS against scumbags (Score:5, Insightful)
In short: Why, why does our potential landmark 5th amendment case have to be a kiddie porn case?
Because the prosecutors ALWAYS go after the least-sympathetic scumbag they can find (or create the appearance of) when trying to establish a break-the-bill-of-rights precedent.
In the case of trying to clamp down on new forms of speech, press, or association this is USUALLY a child pornography or child molestation case.
Once they've got the precedent in place they can go after the real target: Anybody they don't like.
Parent
Re:Uh-Oh (Score:5, Insightful)
Did you really think it would be about anything else? The "justice" machine has been looking for decades for precedent setting cases to overturn or sidestep the constitutional protections we have. One at a time, they fall like dominoes.
Our nation's preoccupation with child pornography is greater, perhaps, then even our irrational fear of terrorists. Of course it's going to be child pornography. If not this guy, then someone else, truth of the matter not withstanding.
Those of us who can think, who read, understand that most child sexual abuse comes from the people they know and trust (family, family friends, etc.), not kiddy porn rings or myspace predators. This is about power, pure unadulterated power, and nothing else.
It's getting to the point, at least for me, where I automatically disbelieve and distrust every law enforcement official on every single statement they make. I view them all as worthless scum first, and leave it up to them to prove otherwise. Some of them even have.
If any of you out there are or have been police officers, and feel insulted, let me ask you: How many people have you pulled over and issued tickets (sometimes in the hundreds of dollars)? And how many times have you let another police cruiser get away with speeding, reckless driving, rolling stops, failure to signal, etc.? I'm not talking about when they are going lights-and-sirens, I mean when they're out 'cruising'. Yeah, thought so. Until the legal system actually starts policing itself (hah!) we're just going to see them continue hand in hand, doing the government's dirty work and getting away with whatever the fuck they want to.
Parent
Strange (Score:5, Interesting)
IANAL, but if my memory serves me correctly, Customs and "border guards"aren't constrained by the same laws that other law enforcement is. That's why they can search your vehicle, personal effects, body cavities, etc. when you enter the country without a warrant.
I have a constitutional protection against unreasonable searches and seizures once inside the United States, but not while entering it. The judges decision sounds nice, but I don't think it will stand.
Re:Strange (Score:5, Interesting)
That's why they could look at it in the first place.
But they failed to gather evidence when they had the chance. And now he's back in the country, subject to all the regular protections. If they had copied the unencrypted contents of his hard drive previously they would be able to use that evidence in court, but they can't force him to decrypt its contents now just because they happened to have access to it when he crossed.
Parent
Re:Slashdot crazies who know nothing about the law (Score:5, Insightful)
I fail to understand how a court can't order the asshole to produce the data.
Because the data is in his head, not on a physical document. If he had written it down the court could order him to hand over the hardcopy. But if they could order him to divulge the contents of his memory to be used as evidence against him they could do it, not just for passwords, but for anything else. (Like: "Did you kill Jane Doe?") The famous part of the 5th Amendment expressly prohibits that.
What would "enforcing" such an order consist of? Torture. That's WHY it's prohibited.
This case is going to come down to two sworn officers asserting they saw kiddie porn on exhibit A, the laptop. Almost any jury is going to be willing to accept that as proof beyond a reasonable doubt considering the defense could rebutt by simply unlocking the laptop and proving their innocence.
It's not up to the defendant in a criminal case to prove his innocence. It's up to the prosecution to prove his guilt. Are the officers such experts in video synthesis and manipulation that they can determine, at a glance, that the images were of actual children? No? Tough luck. If that's all they have I'd expect the judge to direct the verdict or throw it out for lack of evidence.
Parent
Wrong (Score:5, Informative)
"Don't be an idiot. Enforcing would be done exactly as it is done in any other case of someone refusing to comply with an order issued by a court. You hold them in contempt of court and lock em up until they obey or they can get a higher court to reverse. No rubber hoses required."
Not so. Physical compliance is one thing. Compelling someone to speak is something entirely different. They are different areas of the law, and covered by different parts of the Constitution. Further, once again: this has to do with the 5th, which prevents compelling someone to testify against himself. AND, as I mentioned elsewhere, there are MANY perfectly legitimate reasons why someone would not want -- very much not want -- the "authorities" to access their files, even if there is nothing illegal in them!
("Gee, let's see... I am a border guard, and I have this bogus "do not fly" list, consisting largely of people who are political activists... let's accuse him of child pornography and see what's in his secret files!")
If you think that scenario is unrealistic, then you have not studied your history.
"But since the testimony of two sworn peace officers will almost certainly convict beyond a reasonable doubt in the absence of any defense, going that route is a sure fire path to a "pound me in the ass" federal prison."
Bullshit. In order to convict on "say-so" only, the two witnesses would have to be VERY credible. If I were a juror, it is unlikely I would vote to convict without physical evidence. And as for being credible witnesses, especially when it comes to identifying children on grainy video... heck, it's a stretch even calling most border guards "law enforcement"!
By the way, I should mention that a couple of years ago, the Supreme Court ruled that in order for something to be judged "child pornography", it must be proven that (1) it is actual pornography, and (2) that the subjects are actual children. Good luck proving those with no videos. Do you think the guards recognized those particular children? Do you think that they names and addresses were flashed on the screen? I doubt it.
"Basically this guy is saying "That laptop over there doesn't have anything illegal on it. Those pigs are just lying ignorant bastards who wouldn't know a playboy bunny shot from japanese tentacle porn. But you guys on the jury are just going to have to trust me on that..."
Yep. And that is enough, legally and Constitutionally. As it should be. You don't seem to appreciate how horrifically "the system" could be abused, if we did not have such safeguards. History is full of such stories... are you going to be one of those people doomed to repeat history because you did not bother to learn it? I hope not.
-- "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." - Benjamin Franklin
Parent
Dupe, noted in firehose, with link (Score:5, Insightful)
Seriously, are the editors asleep?
This story [slashdot.org] from last December had the exact same article. This was noted in the firehose entry [slashdot.org], and somehow this still got posted. I thought that kind of thing was a major purpose of the firehose?
WTF
You have the right to remain silent. (Score:5, Informative)
Period. End of discussion. They cannot compel your testimony. Not one word can they force you to utter. It is your choice to stand mute and that cannot be used against you.
Anything more than this, compelling you to utter even a single syllable in order to prove your own innocence or guilt, and we don't live in the land of the free anymore.
Pass-Phrase Confession (Score:5, Interesting)
So what if I made my pass phrase the confession to some minor crime and then confessed the fact? Wouldn't that make it a more clear-cut fifth amendment issue as revealing my pass-phrase would be directly incriminating?
Re:Sweet! (Score:5, Insightful)
Parent
Re:Sweet! (Score:5, Insightful)
First of all, let's stop pretending that this has anything at all to do with "child pornography".
The justice department was just trying to get some case law saying an individual could be forced to relinquish his password, and by using "child pornography" they thought they could bully some judge into betraying the Constitution. It's a good sign that those sons of bitches lost, too.
And ultimately, torture doesn't work. Eventually, a society that violates basic human rights so blatantly will fall, and often (but not always) the perpetrators end up on the other end of the see-saw. Then, it becomes harder to find people who will obey orders to torture. We in America will eventually learn that it was a huge mistake to forsake our principles and become a torture regime. But, I can only hope that Bush, Cheney, Gonzalez and others will face the music. There's no guarantee that justice moves quickly enough to give that kind of satisfaction. But move it does - and inexorably.
Parent
Re:Sweet! (Score:5, Insightful)
First of all, let's stop pretending that this has anything at all to do with "child pornography".
Thank you Pope Ratzo!
Any time the government wants to remove one more right from you, the test case will always be a charge of child pornography or terrorism. But it's not like the precdent will be "only for accused terrorists" - it will be used for anyone. Even if it were, accusing your political opponents of being pedophiles or terrorists in order to use the "special case" laws against them has been done throughout recorded history. It's not exactly hard to put encrypted child porn on a seized laptop after the fact, if you're willing to break a law to get a conviction!
Parent
Re:Sweet! (Score:5, Informative)
The US "doesn't torture" only because it asserts that it doesn't. It also asserts that inflicting pain would not be considered torture unless it caused "death, organ failure or permanent damage." [nytimes.com]
Even the current Republican presidential candidate, John McCain, considers waterboarding to be torture [nytimes.com], saying, "it was used in the Spanish Inquisition, it was used in Pol Potâ(TM)s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today."
Besides, many consider any form of pain compliance, for forced information extraction, to be torture. Waterboarding is essentially forced drowning with a medic in attendance, to revive the "patient" in case his/her vitals falter.
Parent
Re:Sweet! (Score:5, Insightful)
Parent
Re:Backdoors? (Score:5, Insightful)
or that they aren't open to people at that level
If someone like the NSA knew how, I doubt they would let that information leak without a really, really good reason. And "think of the children" doesn't count in that arena.
which is nice.
At least, it's good to know. :)
Parent
Re:good thing, bad thing (Score:5, Insightful)
Parent
Re:Relinquish or Destroy? (Score:5, Informative)
You'd probably get thrown in jail for that, and it'll probably stick. Refusing to divulge your passphrase is protected by the Fifth Amendment, but if you give them a self-destruct phrase and tell them it's the passphrase, you have just destroyed potential evidence that is in their possession, and I'd be surprised indeed if that is not against one or more laws.
Parent
Re:so how did they see it the first time? (Score:5, Insightful)
I find it sad that most everyone discussing this topic feels compelled to add in a condemnation the pornographers as if otherwise people would suspect them of being one. We can discuss murder and other heinous crimes without needing a disclaimer.
Not that I'm defending child pornographers in any way.
Parent