Judge Rules Man Cannot Be Forced To Decrypt HD 775
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.
Re:of course (Score:1, Informative)
Shit. Posting to nullify my accidental "overrated" mod.
I'd meant to mod +1, Funny.
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.
Re:The devil is in the details (Score:5, Informative)
http://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalition [wikipedia.org]
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).
Re:Uh-Oh (Score:4, Informative)
This is exactly why the ACLU gets so much hate: they have to go to bat for civil liberties to try to prevent bad precedent, even though public opinion on the case is more like "Due process? Just lynch them!"
That this happens so often leads me to believe that a number of prosecutors pick these opportunities specifically to force judges to choose between civil liberties and looking like they support the Prime Evils.
Re:The devil is in the details (Score:5, Informative)
Re:The devil is in the details (Score:2, Informative)
They had to find a replacement for Communists. Remember when we were kids (or at least some of us, anyways), Communists were lurking in every dark alley, exchanging secret handshakes and meeting in strange, poorly-lit hotel rooms to plot the overthrow of the Free World.
Now, it's pedophiles. The same sort "They're everywhere" paranoia is spread about by the media and by police forces, both of which thrive economically on FUD.
I'm not defending pedophiles. I think they should be strapped down, have their genitalia removed with piano wire and forced to go around with the words "CHILD RAPER" etched with some sort of power tool on their forehead, but the fact is that despite the media's very best efforts, and the various police forces to find some new avenue to trash civil liberties at every turn, "for the children" has become the rallying cry. The Founding Fathers intended the government to err on the side of liberties, even where freedom of expression might be quite distasteful to the larger society. That means Communists shouldn't have been harassed and in imprisoned, unless they were actually aiding an enemy power, and it means that just because some sicko has sexually explicit cartoons, drawings or stories involving children doesn't mean that we just toss the First and Fifth Amendments out the door.
Re:Dupe, noted in firehose, with link (Score:4, Informative)
kdawson seems to be an "editor" in only the absolute vaguest sense of the word.
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.
Re:The devil is in the details (Score:1, Informative)
Actually, child pornography is such a witchhunt that even animated child pornography is illegal.
False: http://supct.law.cornell.edu/supct/html/00-795.ZS.html [cornell.edu]
Re:The devil is in the details (Score:5, Informative)
Re:The devil is in the details (Score:4, Informative)
In a decision announced in May of this year, the Supreme Court upheld the conviction of a man who offered to trade obscene pictures of his toddler for similar pictures with a federal agent posing as a pedophile. United States v. Williams, S.Ct. case #06-694, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-694 [findlaw.com].
*IMHO, our legislators seem to be more concerned with making up a memborable title (USA PATRIOT ACT, PROTECT, etc.) than dealing with the actual content of the laws.
Re:The devil is in the details (Score:3, Informative)
These kids are Fail. how well will someone preform at their job if every time they have a problem they call mommy? they don't. I know so many of these manchilds. They can't get laid, they can't get promoted, they can't have good conversation. I don't see these people after I got past jr. year and entry level, because they haven't the skills to follow.
Re:The devil is in the details (Score:3, Informative)
Actually, It's not. Here's a quote from Wikipedia's listing under Child pornography.
Well thank heavens you quoted from such a reputable source. Here's another quote from Wikipedia about the PROTECT Act (http://en.wikipedia.org/wiki/Protect_Act [wikipedia.org]), which was passed by Congress in 2003 and is still in effect:
"Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in actions or situations that meet the Miller test of being obscene, OR are engaged in sex acts that are deemed to meet the same obscene condition....
The prohibitions against illustrations depicting child pornography, including computer-generated illustrations, were previously ruled unconstitutional by the U.S. Supreme Court when they were included in the Child Pornography Prevention Act of 1996. However, the provisions of the Protect Act are distinct, since they establish the requirement of showing obscenity as defined by the Miller Test, which was not an element of the 1996 law."
You can draw an "obscene" picture of minors and go to prison for it in the United States.
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.
Re:Maybe you should look at the Protect Act? (Score:3, Informative)
Maybe you should read the case finding that provision unconstitutional?
How about you find it for us. I bet you can't.
It's already referenced a bit farther back in this slashdot article. By now it's modded up so it should be visible in your browser unless you've hacked your settings. So use your browser's find function to look for "Ashcroft".
Re:Relinquish or Destroy? (Score:2, Informative)
The real reason that this doesn't happen is because its pointless. The first thing that a data forensic team does is mirror the original drive, and store the original away as evidence. They then work on the mirrored image.
So, you go and give the self destruct key, and it renders the data on the copy useless. Big deal. They just go and mirror the original again, and you are back at square one.
Re:Hooray for the judge, for seeing through this. (Score:4, Informative)
Re:The devil is in the details (Score:3, Informative)
Hell yeah I'm a perv, and my wife *wears* a plaid skirt and tight sweater for me on special occasions.
Re:Maybe you should look at the Protect Act? (Score:4, Informative)
It's already referenced a bit farther back in this slashdot article. By now it's modded up so it should be visible in your browser unless you've hacked your settings. So use your browser's find function to look for "Ashcroft".
Did you even read my post? Ashcroft v. Free Speech Coalition invalidated portions of the COPA Act in 2002. The PROTECT Act was passed in 2003 and again made certain drawings or computer-generated images of minors illegal in the United States.
Re:The devil is in the details (Score:3, Informative)
While the EU does not have a common penal code, it does guarantee rights to all EU citizens. Countries cannot make someting illegal if it is a right that the EU guarantees citizens of EU countries. However, it seems highly unlikely that this would be a right that the EU would guarantee, thus allowing individual countres (such as Germany) to criminalize it.
Re:The devil is in the details (Score:1, Informative)
I swear, Your Honour, she's a 16 year old Chinese Olympic gymnast with the appearance of a 12 year old female!
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.
Re:TrueCrypt Hidden OS (Score:3, Informative)
Plug for TrueCrypt 6.0's Hidden OS feature. This allow one to give a password (not the "real" password) and have the system boot to a hidden OS which is not your real installation. Moreover, there is no way to prove the "real" OS exists. http://www.truecrypt.org/docs/?s=hidden-operating-system [truecrypt.org]
Bruce Schneier says otherwise: http://www.schneier.com/blog/archives/2008/07/truecrypts_deni.html [schneier.com]
There are a variety of attacks that might allow authorities to conclude that you had a hidden partition.
Re:Sweet! (Score:2, Informative)
Never mind that your diluting the meaning of the word "torture" beyond measure. This is not torture at all, a much more accurate description would be "not respecting privacy of a criminal suspect". Causing direct and extreme physical or psychological pain in order to extract information is torture
Had you read the posts above you, you would know that he's talking about waterboarding. And I'm pretty sure that that qualifies as torture...
Re:The devil is in the details (Score:1, Informative)
(and I suppose if you're really screwed up in the head, you could end up as a child molester who isn't a pedophile... but that's unlikely to say the least)
1. "Pedophiles" are in general attracted to child-like features. Banging the 15yo with huge tits isn't anywhere near pedophilia, but can still land you in jail as a child molester.
2. Sexually frustrated people may turn to the easiest source of sexual release, doesn't mean they're pedophiles just that it beats jacking off themselves.
3. Some seem to be omnisexual, screwing around with whatever makes them feel good. Not really an attraction to children, more like open for anything with anybody.
4. Some people seem to be attracted to perversity itself - having "regular" fetishes aren't enough so they spiral down to child molestation because it's so utterly forbidden.
5. Some people have an extreme domination fetish - there's few adults you can so totally control as a child, so that's their drive rather than an attraction to children.
Of course, none of these categories are mutually exclusive so maybe they have a tendency or inclination or whatever. But I doubt all the child molesters would have the characteristics of pedophiles.
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
Re:Man, this is _so_ wrong. (Score:3, Informative)
I think you mean http://en.wikipedia.org/wiki/Guerrilla_warfare [wikipedia.org]. As for Gorilla Warfare [freakingnews.com], I am sure you can excuse the poor gorillas [flickr.com] for fighting the good fight [cineclub.de]
Re:That's because they lost the encryption war. (Score:3, Informative)
Which is a pity because using encryption is one of the best mechanisms we have to secure ourselves against Identity Theft.
Re:Sweet! (Score:4, Informative)
Waterboarding is essentially forced drowning with a medic in attendance, to revive the "patient" in case his/her vitals falter.
Actually, it's not drowning at all. If they wanted to force drowning all it would take would be a kitchen sink. For waterboarding, the subject is placed at a slight head-down angle and the cloth over the face prevents aspiration of any meaningful quantity of water, so drowning is actually mechanically impossible. It just gives a thoroughly convincing sensation of drowning. al Zarqawi lasted almost 2 1/2 minutes (a superhuman feat) before he gave in and agreed to talk--- which means he wasn't drowning. This is the reason the technique is used. Asphyxiation due to drowning limits one to as long as it takes for the subject to pass out, then requires medical attention. Waterboarding, it can go on and on....
Re:Man, this is _so_ wrong. (Score:4, Informative)
http://wizbangblog.com/content/2004/10/29/livejournal-blo.php
Re:The devil is in the details (Score:4, Informative)
Before the detective can answer, the defense has objected because the detective is not an expert and thus not permitted to express an opinion on the stand. The judge then sustains the objection and the question is withdrawn.
What most people don't understand is that in court, an expert witness is somebody who knows enough about that subject to be allowed to express an opinion and only an expert witness can do so. As an example, a nurse can testify as to what happened in the OR but can't express an opinion as to whether or not what happened constituted malpractice. In this case, a regular detective can tell the court what he saw, but not express an opinion as to whether or not the images are real or CGI, because he doesn't have the training and experience to be qualified as an expert witness on the subject.
Re:Sweet! (Score:4, Informative)
Here in the U.S., we don't have to prove our innocence, the cops have to prove that we are guilty.
Re:Uh-Oh (Score:5, Informative)
A late uncle of mine who served as a U.S. Marshal for many, many years once told me basically the same thing.
Re:Sweet! (Score:4, Informative)
Actually, it *is* pretty much drowning. The main advantage of it is that you can handwave and pretend that you aren't slowly drowning someone.
Have you seen
Christopher Hitchen's experience of waterboarding [vanityfair.com]?