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dogma wrote:

Rented Tritium wrote: If you write a bunch of notes in code, the court can't make you explain them.

Yes they can.

Just because they know that you own these files, and they think that they contain incriminating information, does not mean that the 5th should not apply and that you should be forced to provide them with the ability to prove that the files you own are in fact incriminating.

This is one of those cases that really needs to make it's way all the way up to the SCOTUS.

mattyrm wrote:

Melissia wrote:

mattyrm wrote: Some Americans take the whole fething "freedom" thing[...]

... not far enough.

Please elaborate im curious where this is going.

The incessant pushing for more and more power by government bothers me. A password is a very private thing, and shouldn't be so easily obtained even through the court system.

d-usa wrote:Just because they know that you own these files, and they think that they contain incriminating information, does not mean that the 5th should not apply and that you should be forced to provide them with the ability to prove that the files you own are in fact incriminating.

You're confusing the 4th and 5th amendments.

There are restrictions on how the government can obtain evidence to convict you, but very few of those are implicated by the 5th amendment.

Rented Tritium wrote:If she says she can't remember, they have no reasonable way to prove she's lying, so the obstruction charge won't stick.

Exactly, how can they prove she hasn't just forgotten it? Convenient as that is for her. It's not like they are allowed to try waterboarding to get it out of her.

I don't quite see how knowing a password proves ownership or exclusive usage, computers have be jointly owned. Strictly speaking this laptop I'm using and have the passwords for belongs to my wife.

d-usa wrote:
Just because they know that you own these files, and they think that they contain incriminating information, does not mean that the 5th should not apply and that you should be forced to provide them with the ability to prove that the files you own are in fact incriminating.

Read the decision again.

dogma wrote:

Rented Tritium wrote: If you write a bunch of notes in code, the court can't make you explain them.

Yes they can.

If I write a bunch of hand written notes on actual paper and they are in code, the court cannot force me to explain what they mean.

But if I do effectively that same thing with a computer, they can.

That's wrong. I am disagreeing with that. That is the point of my posts. Citing cases dealing with the computer side of things doesn't change that I think that's wrong.

Zyllos wrote:I found something that might be useful.

Wikipedia wrote:In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment. In Boucher, production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant.[49]

[49] - In re Grand Jury Subpoena to Sebastien Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb 19, 2009).

Automatically Appended Next Post:
Ok, so basically, what I got from that document is that if I outright denied that there is no password or passphrase to the document, they have no basis to comple a person for the passphrase or password in the first place. But if I do, then I can not ask for 5th rights because I already acknowledged that the documents are indeed mine, no matter what you find and thus must provide information in a readable format as it is not self incriminating to give unencrypted documents that I already said that were mine.

Did I read that right?

Anyone have anything to say about this document? I think it pretty much sums up the issue.

Seems legit to me...

Court: What does this say?
Defendant: It says wfdh0tg73hfds

Zyllos wrote:Anyone have anything to say about this document? I think it pretty much sums up the issue.

Cases out of the District Court for Vermont are not controlling in the 10th Circuit.

biccat wrote:

Zyllos wrote:Anyone have anything to say about this document? I think it pretty much sums up the issue.

Cases out of the District Court for Vermont are not controlling in the 10th Circuit.

Hmm, maybe you could explain this to me.

Rented Tritium wrote:
If I write a bunch of hand written notes on actual paper and they are in code, the court cannot force me to explain what they mean.

Even without looking up any case law, I can tell you exactly how the argument will go:

Citing In re Boucher, the defendant is required to provide us with the code key for these physical notes.

Rented Tritium wrote:
Citing cases dealing with the computer side of things doesn't change that I think that's wrong.

No one cares about what you think is wrong, except me, and only insofar as I can manipulate you/people like you. Its a matter of what the Court can do per the law.

Scenario 1:

I write a document on paper with a pencil. I write it in code. You have to read every nth letter or something and add them up and whatnot. There's a trick to it.

The court wants the contents of that letter. You hand them the coded letter and say here you go. It contains a bunch of random numbers and letters. Those ARE the contents of that letter.

The 5th amendment allows you to refuse to explain your intent when writing that letter. You just wrote letters on a paper. You gave them that paper.

Scenario 2; You write a document and use a computer program to encrypt it. The encryption scheme is stored in a numeric key that only you know.

The court wants the contents of the file. The file contains 0s and 1s. here you go.

The court can demand that you give them the key to the algorithm that decodes it.




Why are these two scenarios treated differently by the law? That's nonsense. They should both be treated the same way.

dogma wrote:

Rented Tritium wrote: If you write a bunch of notes in code, the court can't make you explain them.

Yes they can.

And they can prove you are providing the correct info how? Seriously, how can they prove that I didn't feel the odd need to encode my grandma's pancake recipe?

Boucher has this little gem

"to provide an unencrypted version of the Z drive viewed by the ICE agent."

What if my document is in french, do I have to translate it for you? Nonsense. I gave you the version of the document that exists. An unencrypted version of the document does not exist. You are asking me to create a document, not give you one.

What if I'm good enough that I can just read it in coded form. Now you're asking me to CREATE evidence for you.

Zyllos wrote:Hmm, maybe you could explain this to me.

The court system is set up in a hierarchical system: each court is (in theory) bound only by the decisions of those courts above it. So the District Court for Colorado is only bound by 10th Circuit and Supreme Court precedent. The 9th circuit and the 10th circuit can (and do) decide an issue of law differently and there is no reason that one needs to follow the rulings of the other; they're technically of equal standing and neither has authority over the other.

This is the reason why large national companies may try to "forum shop" - get their case heard in the most favorable district - when filing a lawsuit.

Rented Tritium wrote:Boucher has this little gem

"to provide an unencrypted version of the Z drive viewed by the ICE agent."

What if my document is in french, do I have to translate it for you? Nonsense. I gave you the version of the document that exists. An unencrypted version of the document does not exist. You are asking me to create a document, not give you one.

Yes, I'm asking you to provide an unencrypted version of the document, just as it says on the tin.

If it were simply in French, I would simply call a linguist.

biccat wrote:

Zyllos wrote:Hmm, maybe you could explain this to me.

The court system is set up in a hierarchical system: each court is (in theory) bound only by the decisions of those courts above it. So the District Court for Colorado is only bound by 10th Circuit and Supreme Court precedent. The 9th circuit and the 10th circuit can (and do) decide an issue of law differently and there is no reason that one needs to follow the rulings of the other; they're technically of equal standing and neither has authority over the other.

This is the reason why large national companies may try to "forum shop" - get their case heard in the most favorable district - when filing a lawsuit.

I figured as much. So what your saying is that document is useless in this case? I still think this is a perfectly valid document to bring up, not to so much as force the judge in a decision, but to provide evidence for a paticular decision.

dogma wrote:

Rented Tritium wrote:Boucher has this little gem

"to provide an unencrypted version of the Z drive viewed by the ICE agent."

What if my document is in french, do I have to translate it for you? Nonsense. I gave you the version of the document that exists. An unencrypted version of the document does not exist. You are asking me to create a document, not give you one.

Yes, I'm asking you to provide an unencrypted version of the document, just as it says on the tin.

If it were simply in French, I would simply call a linguist.

So going back to the paper notes example, you are asking me to pen a new document for you. If an "unencrypted version" does not exist, then you are subpoenaing me for a document that does not exist. You are subpoenaing me to make me CREATE A DOCUMENT.

The "contents" of the document are already known to you. You just can't make sense of them. It is not my job as a defendant to explain things to you. If you don't understand what I wrote, I suggest you get cracking on that code.

And what's to stop me from drawing a pony on a piece of paper and saying that's what the code meant? You have no way of verifying it without understanding the code, which means you are going to need me to explain the code, which is DEFINITELY a violation of the 5th.

Rented Tritium wrote:
So going back to the paper notes example, you are asking me to pen a new document for you. If an "unencrypted version" does not exist, then you are subpoenaing me for a document that does not exist. You are subpoenaing me to make me CREATE A DOCUMENT.

No, I'm issuing a subpoena for the encrypted document on the reasonable suspicion that it contains material evidence, and further requiring you to decrypt it.

Rented Tritium wrote:
The "contents" of the document are already known to you. You just can't make sense of them. It is not my job as a defendant to explain things to you.

Per case law, yes it is.

Sorry, welcome to reality.

dogma wrote:

Rented Tritium wrote:
So going back to the paper notes example, you are asking me to pen a new document for you. If an "unencrypted version" does not exist, then you are subpoenaing me for a document that does not exist. You are subpoenaing me to make me CREATE A DOCUMENT.

No, I'm issuing a subpoena for the encrypted document on the reasonable suspicion that it contains material evidence, and further requiring you to decrypt it.

Rented Tritium wrote:
The "contents" of the document are already known to you. You just can't make sense of them. It is not my job as a defendant to explain things to you.

Per case law, yes it is.

Sorry, welcome to reality.

The caselaw you posted applies to a single circuit and does not actually apply to paper coded documents. Sorry to burst your broad application bubble.

I absolutely promise that if the scenario I posted with the paper coded document went to court, they would find the other way. That's the problem.

Zyllos wrote:I figured as much. So what your saying is that document is useless in this case? I still think this is a perfectly valid document to bring up, not to so much as force the judge in a decision, but to provide evidence for a paticular decision.

It's what we call a "persuasive" case law, rather than "precedental" case law. It's not evidence (that term has a particular meaning), but it's law that the judge could consider.

But the judge doesn't have to follow the ruling if he doesn't want to.

Rented Tritium wrote:So going back to the paper notes example, you are asking me to pen a new document for you. If an "unencrypted version" does not exist, then you are subpoenaing me for a document that does not exist. You are subpoenaing me to make me CREATE A DOCUMENT.

The difference is that the woman is not being asked to produce the algorithm to decrypt the document, that's already known. Instead she's being asked to produce a key that unlocks access to the information based on an already existing algorithm.

In your example, I doubt that you would be required to produce the algorithm if it truly was unique and not simply some existing algorithm requiring a pass key (say a couple of prime numbers). Because in your case, the police wouldn't have sufficient knowledge (from a 4th amendment perspective) that the information contained therein contains any otherwise admissible evidence.

Melissia wrote:

mattyrm wrote:

Melissia wrote:

mattyrm wrote: Some Americans take the whole fething "freedom" thing[...]

... not far enough.

Please elaborate im curious where this is going.

The incessant pushing for more and more power by government bothers me. A password is a very private thing, and shouldn't be so easily obtained even through the court system.

Well of course I agree with you to a point, I merely think that as usual a happy medium is required. If evidence shows that it is likely someone is engaging in criminal acts, I dont think that "freedom" should allow them to get away with it. As I said, Its not like the USA has a nazi like legal system, and if you are a law abiding citizen I dont see the issue. I would happily allow a cop to check my basement if one showed up at my door and said they were looking for an escaped convict or something.

I mean why not? No harm, no foul, I would let them check my PC as well. It bothers some people, but not me. Im all for law enforcement having their jobs made easier, not harder because it seems like criminals get too much leeway these days.

I made the same argument when Muslims were complaing about getting stopped and searched in the UK. Big deal, suck it up and deal with it. Ive been stopped and searched before, didnt do me any harm. I asked the cops what they were checking for, had a friendly enough conversation with them and then left, no problem. If there was an APB out in Pasedena today for a handsome dark haired Englishman in a hawaiian shirt who just robbed a bank, and the cops pulled me over a couple of times, I would laugh about the whole thing and point out that I happen to fit the description of the robber, not complain incessantly about it.

If the risk of a suicide bomber on the tube means that he is likely to be male, 18-30 and have a beard, who the hell should the cops be out looking for and searching? Old Jewish women?!

My point is simply that. Cops should be allowed to check for thelikely suspects, and if there seems to be evidence against someone, then go ahead and check, its no great shakes if they are wrong.

I understand what you are saying, and I dont think that the government should be able to do whatever they want, but im tired of the same ridiculously stupid arguments on here. I say "gays should be allowed to get married" and they say "Next thing people will be marrying donkeys!" I say "there should be gun controls" and they say "next they will ban squirt guns!" I say "you should be able to get a beer at 18" and they say "next thing you will be giving heroin to babys!"

Its immensely frustrating and ridiculously childish. The slippery slope argument is a pre school argument and it seems to be made primarily by the American "freedom!" crowd. Perhaps I dont have a chip on my shoulder because in my country gays dont get hatred thrown at them by senators, I can buy myself a pint when I get home from a war if im 18, and Religious zealots arent attempting to cram nonsense into the science lessons at my local school, but why is there such saber rattling about "freedom" and "the constitution" when you are free, you have a nice place to live, and everything is tickety boo? If an ammendment makes it easier to be a criminal, then change the frigging ammendment! They soon get rid of prohibition right?

Nobody is arguing that cops should be able to chain you to a tree and rape you with a broomshank if you jaywalk. Im simply saying that if there is a hint that this chick is a fraudster then absolutely they should be able to force her into giving the password. If they are wrong and there is nothing on it, then say sorry and give her a muffin. No harm done.

Seriously.. your a sensible lass so I know your not going to disapoint me and say "Oh yeah? Well next thing you know there will be hardly any evidence at all that you deal drugs and they will want to do a cavity search with a spiky dildo!" so tell me, what actual logical flaws are there in what im saying? No long term harm can be done if they are wrong, so why not?

biccat wrote:The difference is that the woman is not being asked to produce the algorithm to decrypt the document, that's already known. Instead she's being asked to produce a key that unlocks access to the information based on an already existing algorithm.

In your example, I doubt that you would be required to produce the algorithm if it truly was unique and not simply some existing algorithm requiring a pass key (say a couple of prime numbers). Because in your case, the police wouldn't have sufficient knowledge (from a 4th amendment perspective) that the information contained therein contains any otherwise admissible evidence.

Encryption programs like truecrypt actually use your encryption key as an actual part of the algorithm. If it were just a password and not an integral part of the decryption process, then it would have been trivial for them to crack this already. A key component of the technology is that your encryption key IS INDEED a part of the algorithm and actually IS a unique string used for the code itself.

mattyrm wrote: Well of course I agree with you to a point, I merely think that as usual a happy medium is required.

Happy for who? Trying to reach the "golden mean" in everything is logically fallacious, and reminds me of this XKCD comic (and a description of the fallacy is on the page as well, along with a similar one here)

Rented Tritium wrote:
The caselaw you posted applies to a single circuit and does not actually apply to paper coded documents. Sorry to burst your broad application bubble.

It applies to any jurisdiction in the US, and to any argument which it can reasonably be cited in support of.

I'm not sure if you're aware, but laws are basically just words on paper and can be used in essentially the same way that other words on paper can be.

Rented Tritium wrote:
I absolutely promise that if the scenario I posted with the paper coded document went to court, they would find the other way. That's the problem.

I don't think that they would.

Melissia wrote:

mattyrm wrote: Well of course I agree with you to a point, I merely think that as usual a happy medium is required.

Happy for who? Trying to reach the "golden mean" in everything is logically fallacious, and reminds me of this XKCD comic (and a description of the fallacy is on the page as well, along with a similar one here)

Ok then. So rather than answer my post your going off on a tangent about logical fallacies? Ive spelled my poistion out, im not talking about a happy medium for fixing the entire world.

Give me a yes or no answer then.

If there is evidence that a man has child porn on his hard disk, the cops should be allowed to force him to give up the password? Yes or no?

It's checking a hard disk. not digging your grandma up. What's the big deal if they are wrong anyway!?

mattyrm wrote:

Kilkrazy wrote:

mattyrm wrote:It's no big deal as far as im concerned. If i had nothing to hide i would happily give them the password, and if i did have something to hide they should be allowed to force me to give them it!

Some Americans take the whole fething "freedom" thing way too far. Your right to freedom shouldn't assist you in being a criminal. I say the same when they laugh because some of our streets have CCTV cameras in them. I don't care because I don't do illegal gak in the highstreet, if it deterred people from mugging old ladies then im all for it.

Put it a more physical way. If you are a pedo and you have a five year old locked in your basement but the door key is jammed up your ass, should the judge be allowed to force you to give it to the authorities?

Look at it this way..

The concern is more that if you aren't a paedo and don't have a child locked in your cellar, should the government be allowed to put you in jail for 20 years for refusing to give up the key.

It is a tricky one, though, because obviously any sensible criminal would try to hide the evidence of their activities by encrypting it if they could.

Yeah but why is that a concern?

If a copper showed up here and wanted to check my basement i would let him. Id even make him a cup of tea.

If i had a meth lab but they were after a kid and found it by chance.. again, that's my gak luck. I don't think they should be banned from checking.

I should have thought you would believe in the principle that an Englishman's home is his castle.

The point is that all these kind of laws about searches and wire-tapping are capable of being abused, and it's sometimes hard to see where the line is, so a lot of people would prefer to err on the side of caution.

This whole thing sounds completely stupid to me. Wouldn't it be better and cheaper to pay a government employed tech support/hacker to break her encryption? Surely they got one or two guys somewhere who can break the encryption in 20 minutes or so. They do it in the movies all the time.

Lord Scythican wrote:This whole thing sounds completely stupid to me. Wouldn't it be better and cheaper to pay a government employed tech support/hacker to break her encryption? Surely they got one or two guys somewhere who can break the encryption in 20 minutes or so. They do it in the movies all the time.

A properly encrypted truecrypt volume is not going to be brute forcible with current technology inside their lifetimes. Intelligence agencies build entire arrays to do it. It's not something some random DA is going to be able to whip up.