The only difference between the Florida and Colorado cases...
...is that in the Colorado case, the woman was commanded to hand over an unencrypted hard disc, rather than a password to decrypt the hard disc. That's it!
Child abuse suspect won't be forced to decrypt hard drive
A federal appeals court has ruled it improper to compel a child pornography suspect to decrypt his hard drive because such an act would violate his Fifth Amendment rights. The ruling (PDF) by the Atlanta-based US 11th Circuit Court of Appeals in the case of an unnamed suspect from Florida (known in court papers as "John Doe") …
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Monday 27th February 2012 21:23 GMT bobdobbs
Re: The only difference between the Florida and Colorado cases...
My understanding of the Colorado case is that the accused freely admitted (to a jailhouse informant) that there were incriminating files on her encrypted drive.
Because of this (underreported) feature of the case, the judge has taken the stance that her 5th amendment rights do not apply because she has _already_ self-incriminated, and now she's merely being compelled to metaphorically open the door to the room she herself said the incriminating evidence is in.
Not sure I agree with the interpretation myself: if they feel the "evidence" of self-incrimination was already strong enough, would they even need the encrypted files? Kinda feels like they know they have some crappy evidence, but they really really want a silver bullet, and they think she's the best person to provide it, i.e. she should self-incriminate. Mind you, I'm not a sitting US judge, only a bepipetacled armchair detective.
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Tuesday 28th February 2012 11:28 GMT Northumbrian
Innocent until ...
.. only if he really is a kiddy fiddler.
Suppose you wanted to get into someone's hard drive because you thought he was doing something that Disney - er - the DMCA doesn't allow, or even keeping files on the misdeeds of a presidential candidate. You accuse him of paedophilia, get the keys to his hard drive(s) and go fishing for what you can find.
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Monday 27th February 2012 20:22 GMT Bjorg
Or better yet, what happens if I have a combination lock on the door to my meth lab house? Can the police still get a search warrant, bust the door down and arrest me? To take the analogy to the furthest extreme, they must make really, REALLY big safes. So can I buy one and live in it? And put my meth lab in it? Assume I do all of the smart things that would make it livable involving gas masks, oxygen, and anything else I can't think of, but that would keep the safe analogy perfect and me living and breathing inside of it.
Can they cut/blow/melt/whatever it open? I had never heard that you don't have to supply a combination lock and it sounds like an ugly precedent. And the same goes for passwords on encrypted hard drives. Every product we consume or create can be stored in a safe or hard drive, so unless authorites catch them *in the act* of doing something illegal, intelligent criminals will never get caught.
If they *can* get inside via brute force, then I assume the same goes for an encrypted drive, but the difference is that it only takes a few hours/days (probably?) to get into a safe, while it can take hundreds of years to crack even the simplest of passwords. So now I'll just make the walls of my safe arbitrarily thick (300 feet maybe?). The door takes an hour to open, but it takes a lot more time and resources to cut through.
And this one might be a stretch, but if they guy stored media on his drives that he created, cracking the password (or any attempt to cirumvent the protection measures) would violate the DMCA, right? I hate law. Situations like this always make me think you have to be really stupid or really ignorant to intrepret it with any efficiency.
Note to authorities: I don't have a meth lab.
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Monday 27th February 2012 21:45 GMT Graham Dawson
@Bjorg
The issue isn't the lock. The issue is that the 5th amendment of the US constitution provides for suspects to remain silent in order to avoid inadvertently incriminating themselves. Oddly enough this is nothing to do with guilt or innocence as such, and everything to do with the well known fact that the authorities can and, indeed, will twist anything you say into a case against you. It's in their interests to have you talking, because they can use anything you say in court against you.
A good video explanation from a lawyer can be found here: http://www.youtube.com/watch?v=6wXkI4t7nuc
In this case the self-incrimination would be quite simple. They're trying to compel him to hand over what amounts to a detailed description of everything he's ever done online, from which they can very easily construct a very powerful yet entirely circumstantial case against him. They may not have evidence of a crime, but with his harddrive contents the can establish motive, and probably find enough evidence to twist into a logical pretzel establishing presence or actions that would be construed as acting on motive.
In your example, they don't need to find a meth lab at your home. They just need to place you near the location of the meth lab when it was operating and find evidence of motive to operate one (which might be as simple as gettig you to admit that you like watching Breaking Bad), then they can get warrants to search your home, your place of business and everything else until they think they've found enough evidence to prosecute you.
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Monday 27th February 2012 16:57 GMT lotus49
Re: I don't get it...
It is a principle of both UK and US law that no-one can be compelled to give evidence against themselves and it always has been.
The idea is that the prosecuting authorities should be able to make a ca,se that stands up on its own and so does not have to rely on a confession, which can be extorted or made up. It may seem unlikely that someone would confess to a crime they didn't commit except under duress, but there are plenty of examples of that happening. There are far more examples of false confessions being forced out of suspects.
This is a difficult area and I have to say that, on balance, I don't agree with the Supreme Court. The police aren't asking the suspect to incriminate himself but to facilitate the analysis of evidence. I don't think that is the same thing. It doesn't take a genius to work out why he refuses to divulge his passwords/encryption keys, but until he does, no-one will know for sure.
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Monday 27th February 2012 19:14 GMT Keep Refrigerated
Re: Re: I don't get it...
Suppose you felt your local council were fiddling the figures and screwing over local services. You compile evidence you've been able to get on their accounts, transactions etc. on your hard disk... The next day the council finds they've been defrauded in some way by someone using authorized credentials to get into their accounts and steal money. I would say that the 5th amendment would apply here.
As would it apply when it comes to a corrupt cop trying to get an arrest to look good and fakes evidence. Hard to fake evidence of a child porn image if the hard disk hasn't been decrypted yet.
As it would also apply in this situation: "We've found no child porn on your encrypted hard drive sir, but you're wife looks like she enjoyed Benidorm last year... is she always that horny?"
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Tuesday 28th February 2012 13:24 GMT Anonymous Coward
Re: Re: I don't get it...
'This is a difficult area and I have to say that, on balance, I don't agree with the Supreme Court. The police aren't asking the suspect to incriminate himself but to facilitate the analysis of evidence. I don't think that is the same thing. It doesn't take a genius to work out why he refuses to divulge his passwords/encryption keys, but until he does, no-one will know for sure.'
What he's being asked to do is to give a key to his password creation method.
If I told you my password was 12345678, you now have an idea that I use numeric sequences. If I say it's abcdefgh, you know it's an alphabetic sequence. If I said it's 'imbtfol,po' you might be puzzled for... oh, however long it took you to identify the opening lines of a play, and then you'd know that's how I create passwords. That then gives you a starting point for breaking other passwords I might use.
That's why there's a difference between a key and a password.
You also mistake an encrypted drive as being evidence. It is not. It *might* contain evidence, but they don't *know* it does.They want to have a look, but he does not have to help them.
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Monday 27th February 2012 17:00 GMT sisk
Re: I don't get it...
That's because you, like many people in this day and age, are assuming that the fifth amendment is in place to protect the guilty. It's not. It is there to protect the innocent. You can easily incriminate yourself without actually being guilty without such protection.
An example: someone you dislike very strongly was found dead in a bathroom in a bar. You happened to be at the bar at the time, but weren't involved. In the course of investigating, the police ask you how you felt about that person. Lying to a cop is a bad idea, and admitting you hated the guy puts you on a short list of suspects, so you plead the fifth (if you're smart).
The thing to remember about the American justice system is that it's built around the idea that it's better to let a guilty man go than to imprision an innocent one. That's why it sometimes seems like the criminals have more rights than the victims: a lot of the time they do.
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Monday 27th February 2012 18:06 GMT Anonymous Coward
Re: Re: I don't get it...
@Sisk
No, I'm not presuming that someone is guilty at all. What I don't understand is how, when there is legitimate reason for investigation of a particular matter, someone can just clam up and say nothing. I understand why you wouldn't want to say something in a police interview, but I don't understand how someone is able to refuse to answer questions in court. I am of the understanding that in UK courts people can be compelled to answer questions by a judge.
Your example of refusing to answer a question to the Police when a hypothetical person is asked about their feelings about someone is a right-to-silence issue and not a right to not incriminate yourself of a crime.
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Monday 27th February 2012 19:56 GMT tapanit
Re: Re: Re: I don't get it...
"I am of the understanding that in UK courts people can be compelled to answer questions by a judge."
I'm quite certain you're wrong, when it come to the accused. The principle against self-incrimination is rather strongly entrenched in various international legal treaties, notably in the European Convention on Human Rights, which I believe is binding in the UK.
Now *witnesses*, i.e., people who are not being accused themselves, can be compelled to speak, but that's not at issue here.
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Tuesday 28th February 2012 13:33 GMT PatientOne
@tapanit
I believe you're correct: The courts can't compel the accused to give testimony in court. It is even advised in some cases for the accused not to speak.
However, as I understand it, if the accused breaks that silence, they can then be compelled to answer all questions asked. It's to do with 'telling the truth, the whole truth and nothing but the truth'...
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Wednesday 7th March 2012 09:45 GMT kiwimuso
Re: I don't get it... Except........
Except of course, if your car has been photographed by a speed camera, you are then compelled to name the driver or face punishment as severe as for a speeding charge.
So if you are the driver you are forced to incriminate yourself by admitting that you were the driver rather than plod having to photograph you at the wheel of your car at the time.
So if you have a poor memory, and are the 'registered keeper' (what an odd phrase) of the car, you are done for either way.
I was horrified when I found this out as I always thought that the UK was the bastion of 'innocent until PROVEN guilty'. A bit like the DVLA automatically issuing a fine if their "infallible" data base shows you have failed to re-register your car by the due date.
Well yer honour, as it happens, at the time I was in intensive care following a stroke several weeks before. Too bad, yer busted.
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Monday 27th February 2012 21:31 GMT Mike Moyle
Re: Re: Re: I don't get it...
It should also be noted that -- at least in the Florida case -- the prosecution was trying to gather evidence to present to a Grand Jury, whose job it is to look at the evidence and see whether there is enough to warrant holding the accused over for trial. The (apparent) fact that the prosecution felt that they NEEDED whatever may have been on those hard drives in order to bring the case to trial implies that they really may not have had a very solid case at all and were going on a fishing expedition.
Once they had the drives in clear, there was, AFAIK, no limit to what they could look for -- they weren't limited to looking for child porn but could use anything they found (records of unreported freelance income, say) with which to pile added charges on. Too many prosecutors get ahead by following the policy attributed to Cardinal Richelieu: "Give me ten lines written by the most pious of men and *I* can find something with which to hang him!"
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Tuesday 28th February 2012 00:19 GMT Phalamir
Re: Re: Re: I don't get it...
"but I don't understand how someone is able to refuse to answer questions in court"
Because it isn't your (the defendant's) responsibility to make the prosecutor's case - that's his job. He has to prove you did it - all you have to do is kick his case in the nads (presumption of innocence being the default position). At least in the US, you don't even have to testify in your own defense; if the prosecution can't prove the elements of the crime, you can flip them off and let them hang (now, in most cases, it is better to punch them in the legal gut a few times to make sure, but metaphorically-speaking, braining the DA isn't necessary).
Also, consider that what you do say is recorded. Admitting to one crime to get out of another still gets you dumped in the pokey. "I did not break into that shop because I was murdering a guy" is going to get one case dropped, and a whole 'nother one opened.
And one other wrinkle: if you have been granted immunity, you can't plead the 5th because you can't incriminate yourself (well, you can still be tried for the crime, theoretically, but anything resulting from your confession can't be used). You see this in organized crime cases, where you admit to doing something, and then point out you were doing for the boss, so they let the little fish skate to get the big fish - though you may or may not still be in jail, because they already have you one other things.
And if you want some sort of underlying principle, it is this: If you can be compelled to answer, the only thing stopping the prosecution from torturing you to get the answer he wants is the little angels - and those boys are notoriously known for their horrible track record. The way the government is kept honest is to make it work for what it gets - we've gotten more advanced than the Inquisition, thank you very much
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Monday 27th February 2012 17:37 GMT Graham Marsden
@Anonymous Coward and lotus49
Once again it seems it's necessary to remind people of the principle of Presumption of Innocence.
Requring (or forcing) someone to incriminate themselves or even simply "facilitating the analysis of evidence" means that a suspect has to prove they have not committed a crime, rather than the authorities demonstrating that they *have* done so.
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Thursday 1st March 2012 20:49 GMT John_thompson
Re: I don't get it...
Its not that difficult to understand. In America our 5th amendment says:
"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 offence 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."
The key part in regards to this case and others is "nor shall be compelled in any criminal case to be a witness against himself," if the judge had required him to turn over the encryption password he would in essence be acting as a witness against himself. As far the analogy regarding safes and file cabinents the police can break into those without any help from the defendeant. However, without the encryption password it is very difficult if one is using strong enough encryption.
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Monday 27th February 2012 16:23 GMT Anonymous Coward
Re: SO?
And will have the added benefit of boosting the data recovery industry who will make easy money from those who've taken this advice and forgot that their password was 1234 or one of the usual 100 or so standard ones. Unless of course they remembered to write it on a postit note and stick it to their screen.
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Monday 27th February 2012 20:26 GMT Alfred
Re: Re: SO?
Maybe The Man might, but unless you're an international terrorist or an independent MP, you need only worry about people who would be foiled by the most elementary precautions that you choose not to take.
Do you wear your seatbelt? Why's that? If you ran into a tanker an 100MPH which then exploded, you'd still die, right? So why do you take that precaution? Do you look before crossing the road? Why bother? If you got hit by an asteroid the size of Poland looking wouldn't have helped.
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Monday 27th February 2012 16:55 GMT bobbles31
Re: Re: Re: The law is there to protect us.
If they have done their homework then surely they have some evidence of his guilt that would then cause a Court to compel him to release the keys to the drive.
There is a subtle difference between "you have some encrypted disks, you must be a peadophile." and "We have evidence that you are a peadophile and believe that there is more evidence on those encrypted disks."
The fifth amendment is there to protect people from the former, the courts in the US have already provided the authorities with the powers for the latter.
The law isn't protecting kiddie fiddlers or terrorists, the law is protecting every American citizen.
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Monday 27th February 2012 23:44 GMT Jason 24
Re: Re: Re: Re: The law is there to protect us.
@ bobbles31;
"If they have done their homework then surely they have some evidence of his guilt that would then cause a Court to compel him to release the keys to the drive."
Bwwwwwwhahahah! Don't make me laugh, I got raided and and everything computer related taken from me for 9 months because someone had given them a "tip off" that we were kiddy fiddlers. The officers doing the raid even stated "we don't have any internet logs or anything or we'd be arresting you right now", though they couldn't actually say "it's just a tip off" it was near as dammit implied.
Thankfully I'd already gotten rid of our backup tapes for the day so they couldn't go blagging me for the encryption keys to those, my boss would not have been best pleased had they taken them.
Don't get me wrong, I'd rather than over checked stuff and cleared me than skipping over stuff, they'd get far more of a pasting if they didn't respond to a tip off and later something happened.
However, I would have been happy to hand over the keys to the tapes, I know full well there's nothing dodgy on there. I would be very interested to know why they are even looking at this guy, do they have logs to show he has been accessing dodgy content? Or has someone he's pissed off decided this would be a good way to get a bit of easy revenge?
"There is a subtle difference between "you have some encrypted disks, you must be a peadophile." and "We have evidence that you are a peadophile and believe that there is more evidence on those encrypted disks.""
That is the key difference I think.
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Monday 27th February 2012 16:59 GMT Anonymous Coward
Re: Re: Re: The law is there to protect us.
"This is a not a forced and signed confession, far from it. If the police have him held as a child abuse subject then we can presume that they have done their homework..."
Proving a suspect guilty is the issue here, rather than assuming he's guilty. As you are. Assuming you meant to say suspect rather than subject, which to me rather alters the meaning of what you said :)
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Monday 27th February 2012 17:16 GMT Anonymous Coward
Re: Re: Re: The law is there to protect us.
First of all, he is a SUSPECT, not a convict. Love how you have already tried and convicted him. Innocent until proven guilty, remember? If he HAD fidled your kid, as you claim, they wouldn't NEED the hard drive. Your kid could testify. That's the thing, they have to MAKE the case, not have him hand it to them.
Why will he not hand it? I personally can think of a lot of reasons that have nothing to do with him being guilty of anything myself.
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Tuesday 28th February 2012 01:34 GMT DavCrav
Re: The law is there to protect us.
OK, it was obvious that this case was going to inflame a lot of tensions on both sides of a debate. Let's try to sort through all this mess. One of two things is true:
1) A *potential* kiddie fiddler is free because he didn't hand over his keys. Oh noes.
2) A *potential* entirely innocent person is free because he didn't let the paedofinder general lock him up on trumped up charges. Good good.
At this stage it is impossible to know what happened. Anyone who claims either is true is, while not necessarily lying per se, is being economical with the truth.
The problem here is the juxtaposition of: on the one hand, the idea that criminals should not hide behind the algorithmic equivalent of a locked door; on the other hand, that people should not be forced to open their entire lives to the police on a fishing expedition.
Perhaps there is some middle ground: the self-incrimination defence should still be valid, perhaps unless there is a prima facie case of wrongdoing, accepted by a judge with the standard set of appeals. The prima facie case should not have a "reasonable doubt" level for winning the case, but a "balance of probabilities" level, to compel someone to hand over combinations to safes, passwords, etc. This would offer some compromise between the perfectly reasonable positions of total defence and total offence.
But then what do I know? This is the end of a second bottle of wine. But fuck it, it's a Monday.
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Monday 27th February 2012 16:57 GMT bobbles31
Re: Hollywood
No, the law would not have protected them. The big website with flashing signs saying "Free shit" is a bit of a giveaway as to what would probably be found on any encrypted disks and case law has shown that the courts will gladly compel an individual in those circumstances to provide pass phrases or face contempt of court charges.
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Monday 27th February 2012 20:29 GMT Anonymous Coward
Re: Hollywood
I was going ot make a comment along the lines of "But TPD never hosted any child porn", but, err, they did - they didn't host it per se, but they did operate the torrent trackers and supplied the links to the trackers.
www.theregister.co.uk/2007/09/03/another_pirate_bay_police_case
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Monday 27th February 2012 16:47 GMT Paul Crawford
Re: Can we extend this thought?
Simple if you read the article - this is about you being compelled to provide INFORMATION in your head.
DNA or a physical key are objects that you can be expected to posses. Extracting information by threat of indefinite prison for contempt of court is one step away from torture to obtain confessions.
This is not just about alleged kiddy-fiddlers, this is about YOU in 10 years time when some baseless accusation is made against you in respect to a computer you once had, that is encrypted, and you are then in contempt of court for not providing that knowledge what you don't actually posses.
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Tuesday 28th February 2012 14:26 GMT Ross 7
Someone gets it!
Read Paul Crawfords post - he gets it.
Whilst both a combination and a key both serve the same purpose (they get you into the vault) they are very different things in law. One is a phyiscal object, the other is something you know. Compelling a person to provide a physcal object is fine - the object itself is incontravertible.
Compelling a person to provide something they know is another matter entirely. That information is not necessarily incontraventible (an enc key may be, but what about "Yes your honour, I was alone outside her house that night like the big copper says"?) If you allow compulsion to provide enctyption keys where do we draw the line? What else can we compell ppl to tell us? And how do we do it? Threat of prison? A rubber hose filled with sand? You can see how slippery that slope is, and the courts won't go there - they do not want to be party to the possibility of torture etc.
The decision was the right one. It may not be the perfect one, but it's the right one.
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Monday 27th February 2012 18:30 GMT Anonymous Coward
Re: Can we extend this thought?
Because DNA and fingerprints are part of who you are in a physical sense. Like how you look. The police wouldn't allow you to cover your face in a line up.
In the U.S., the police can't open you up to see what you swallowed, but they can wait until it passes through you or, if you're life is danger, take it from the contents of a pump.
Confessing to how or why you did something, while appreciated by the police, is not something that you have to do. There may be reasons for it, so you don't end up on a short list even though you didn't commit a crime (i.e. told the person you hated their guts an hour before they happened to be killed). A reason for not decrypting a drive may not be the child porn the police are looking for, but the pirated movies or films of you doing stuff you want no one to know about. I personally wouldn't trust the police with the digital photos of ex's I have, that's why that stuff is all encrypted. Nothing illegal, but it's not their concern and I don't want something to get out because I'm the one who told them no one else would ever see the pictures. I don't want my word to mean nothing.
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Monday 27th February 2012 16:23 GMT Yamikotai
Double standards
Just had a little revelation; when I first heard of the case, my opinion was completely "She should not be forced to decrypt it, privacy issues and so on", and just now I realised it involved possible child abuse and the idea did a complete 180 in my head. I hope I'm not becoming a Daily Fail reader... (Think of the children! :P)
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Monday 27th February 2012 16:43 GMT Yet Another Anonymous coward
Re: Double standards
Lucky that the first case the police tried was child porn then isn't it?
They didn't try and get a journalist to decrypt details of a leak, or a banker to decrypt their tax records or a Yamikotai to decrypt details of their pirate MP3s
And of course if they had got a favourable ruling in the child porn case - they would have made it very lcear that they weren't extending the precedence to anyone else.
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Monday 27th February 2012 21:15 GMT Anonymous Coward
Re: Re: Why do they always side with the accused?
You mean the guys who decided that all men were created free but happily ignored slavery , and came up with the three fifths compromise. And also the guys who set up the committees for observation and safety. Pffft - as always it was a case or replacing one powerful state with another.
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Monday 27th February 2012 16:49 GMT Anonymous Coward
Meanwhile, back in Blighty...
He wouldn't be 'John Doe', but named along with address, tried and convicted by our estimable media; all before being compelled to provide the keys under our RIPA legislation.
For those who believe justice is served by forcing someone to incriminate themselves, wait until you're the one getting the 6am knock at the door
http://www.unitedagainstinjustice.org.uk/bill_thompson%202004.htm
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Monday 27th February 2012 17:19 GMT RISC OS
Re: Why?
That he obviously has kiddy porn on his computer. Make him an offer, say the police will ignore anything illegal that they find execpt kiddy porn. If he still refuses it is obvious why, the jury should be made clear that the police wanted to look at his harddisc, and he refused. If he is innocent, he has nothing to hide. People get checked for all kinds of things by police when they match a subjects description, at airports for body scanning... can people refuse those kind of things no... and there is no reason to.
The register is a nerd hangout, nerds without children or any chance of getting children, but anyone with children would not be writing the kind of comments that have been written about this article.
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Monday 27th February 2012 17:05 GMT bobbles31
(sigh)
If the authorities had any information other than the fact he has encrypted hard drives then he would be compelled to assist in decryption. They don't, that's the point.
Due process such as this is their to protect people from the state. People are presumed to be innocent and State's are presumed to be malicious and oppressive. Which they naturally are, their very purpose is to tell you what you can't do. The Bill of Rights provides a set of ground rules for the state's interference in an individuals life. Without it, you end up with Slavery, Genocide and mass Oppression. The fact that now and again it inconveniences the trial of someone who may or may not be a peadophile just goes to show how effective it is.
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Monday 27th February 2012 17:31 GMT rtli-
"If the authorities had any information other than the fact he has encrypted hard drives then he would be compelled to assist in decryption. They don't, that's the point."
That would be a valid line of reasoning. It's not what happened in this case, though. The judge has said the defendant can stand on the Fifth, irrespective of the merits of the case in question. Even if the police had five reliable witnesses testifying they saw child porn on his computer, he could still refuse to assist.
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Monday 27th February 2012 21:36 GMT Old Handle
@ rtli-
No actually, that IS pretty much what happened. Well, it' a bit more complicated. But a key part of the ruling was that unlike previous cases, the government does not have any particular thing they are looking for, only a general category (child porn). Presumably if they had evidence that he had downloaded a specific pornographic video, or as you said, testimony that he was seen with it (as in the Boucher case) they might well have ruled the other way.
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Monday 27th February 2012 17:03 GMT rtli-
_sigh_ Totally missing the point of the amendment
The amendment is there to prevent anyone being forced to provide false testimony. However, a password is not evidence. You can't be tortured into giving a password that makes child porn magically appear on your hard disk. It either decrypts the data or it doesn't. It's a totally ignorant appeal to the amendment.
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Monday 27th February 2012 21:42 GMT Old Handle
Re: _sigh_ Totally missing the point of the amendment
While that is certainly one good reason for the amendment, it is not the only one. I personally think it's bad to torture people into giving truthful confessions as well. And in this case, although you are correct that he can't supply a password that creates child pornography, there does exist the possibility that he has forgotten the password (or never had it) and thus would be "tortured" (imprisoned) indefinitely. I'd say that's another good reason for the protection to exist.
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Tuesday 28th February 2012 09:51 GMT rtli-
Re: Re: _sigh_ Totally missing the point of the amendment
"I personally think it's bad to torture people into giving truthful confessions as well."
Indeed -- and the Fifth prevents that, also. In the case of a password, though, this interpretation of the Fifth provides no protection against a corrupt police force. If they torture the guy behind closed doors and he eventually caves and gives the password, they can simply claim they found it on a piece of paper in his house, or recovered it from his computer's RAM, or something equally suspect but not damning. There will be no visible violation of the Fifth. On the other hand, in the case of a suspect testifying against himself, there are independent witnesses (jury, judge) to him doing so.
"There does exist the possibility that he has forgotten the password (or never had it) and thus would be "tortured" (imprisoned) indefinitely"
In this case, you would need an entirely different set of laws to prevent indefinite imprisonment without trial. The Fifth wouldn't help you.
Since there is no torture-preventing benefit to appealing to the Fifth in this case, and no way false evidence could be coerced, it seems madness to me to claim it applies.
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Tuesday 28th February 2012 17:16 GMT Old Handle
Re: Re: Re: _sigh_ etc.
It may not protect completely against a corrupt police force, but it does protect against an honest but overzealous one. Moreover I don't see how that would work out any differently if you substituted signed confessions (true or otherwise) for passwords.
On the last point, you've lost me again. If this ruling stands he won't be forced to hand over the password, full stop. How can you say that does not help him in the event that he does not have it?
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Monday 27th February 2012 17:13 GMT rtli-
Re: Meanwhile, back in Blighty...
"For those who believe justice is served by forcing someone to incriminate themselves, wait until you're the one getting the 6am knock at the door."
Seriously? You think giving a password to a hard disk is forcing you to incriminate yourself? If nothing else, if there's evidence you've broken the law on there, your hard disk would be incriminating you, not your testimony.
I swear, half of these posts sound like they were posted by children afraid of their parents finding their porn stash, not mature adults with intelligent views on society. Oh, wait...
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Monday 27th February 2012 17:49 GMT Graham Marsden
Re: Re: Re: Re: Meanwhile, back in Blighty...
@rtli-
Remember than in Britain it's now a criminal offence *not* to give up your password if the Authorities demand it.
Naturally this law was introduce simply to protect us from terrorism. It's not as if anyone else would ever be convicted under it, is it...
[quote]The first person convicted under this law was a vulnerable eccentric who refused to decrypt the files on his laptop when the Met's terror squad told him to. He was convicted and jailed despite prosecutors accepting that he was not involved in terrorism at all.[/quote]
http://www.theregister.co.uk/2009/11/25/jfl_ripa_opinion/
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Monday 27th February 2012 18:19 GMT rtli-
Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
"It's now a criminal offence *not* to give up your password if the Authorities demand it."
I don't see a problem with that. The police would already require a warrant. Allowing people to obstruct them as they attempt to uncover evidence serves no principle of justice, nor does it serve as a check against a corrupt police force. Do I remember correctly that obstructing an officer in the pursuit of his duty was already an offence in the physical world? What issue with extending that to the digital?
Of course, if they don't -know- the password, they can't very well give it out, but then that would be a pretty compelling point for the defence should such a case reach trial, no?
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Monday 27th February 2012 22:26 GMT rtli-
Re: @rtli
"So why not throw people in prison for not telling you where a dead body or murder weapon is. As by not giving the police this info, you are obstructing them gathering evidence, by your logic."
I refer you to the second paragraph of my post, where I already addressed this exact point in the sure knowledge someone would strawman my argument. It was also pretty predictable that selfsame nit would never manage to read a whole *two* paragraphs before responding, and would hence miss that completely. Congratulations. You have been stupid on the Internet.
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Monday 27th February 2012 23:29 GMT Anonymous Coward
Re: Re: @rtli
"Congratulations. You have been stupid on the Internet."
Did not see anything in the post I quoted, that said anything to counter the point I made. Which is that the police power to not have their evidence gathering obstructed, does not supersede a suspects right not to incriminate themselves. That is what the comment I quoted was saying. I will let others judge who is the nit here.....
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Tuesday 28th February 2012 10:04 GMT rtli-
Re: Re: Re: @rtli
"Did not see anything in the post I quoted, that said anything to counter the point I made. Which is that the police power to not have their evidence gathering obstructed, does not supersede a suspects right not to incriminate themselves."
Actually, you said (as I quoted):
"So why not throw people in prison for not telling you where a dead body or murder weapon is. As by not giving the police this info, you are obstructing them gathering evidence, by your logic."
So in addition to being unable to read two whole paragraphs, you are unable to remember your own last post. Or you're a _different_ Anonymous Coward from the one I was quoting, and failed to determine which post I was responding to despite my actually quoting, in my response, the exact text I was responding to.
Nice.
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Monday 27th February 2012 22:48 GMT Vic
Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
> The police would already require a warrant.
This is not true.
Section 49 of RIPA 2000 allows "any person with the appropriate permission under Schedule 2" to issue a disclosure requirement notice. Note that the people descried under Schedule 2 are not all police or judiciary.
There is very little control over who can issue S49 notices :-(
Vic.
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Tuesday 28th February 2012 00:34 GMT Graham Marsden
Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
@rtli-
Try researching a little law. Obstructing a Police Officer means, for instance, deliberately getting in his way when he's trying to arrest a suspect. Simply saying "I'm not going to help" is not an offence, nor should it ever be.
As for "if they don't -know- the password", under the sort of laws you seem to prefer, the prosecution could simply claim "the defendant *does* know the password and is refusing to reveal it, so he should be locked up for obstructing us until he tells us what it is!"
In vain would the Defence say "he doesn't know it" because you have presumed guilt and require the Defence to prove innocence. Corrupt cops would *love* that...
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Tuesday 28th February 2012 01:28 GMT Vic
Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
> In vain would the Defence say "he doesn't know it" because you have presumed guilt
This is actually the law in the UK.
A disclosure notice may be issued under Section 49. Section 53 makes it an offence to comply with such a notice.
The onus is upon the defendant to demonstrate that he does not have the key. Failure to do so can get you 2 years (or 5 years if someone mentions "National Security").
RIPA 2000 is one of our shittiest laws.
Vic.
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Tuesday 28th February 2012 02:55 GMT ElReg!comments!Pierre
Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
>"It's now a criminal offence *not* to give up your password if the Authorities demand it."
>I don't see a problem with that. Of course, if they don't -know- the password, they can't very well
>give it out, but then that would be a pretty compelling point for the defence should such a case
>reach trial, no?
That's a nice contradiction you have there. Either you are forced to reveal the password OR you can claim that you don't know it. There's no middle ground. With the law you "don't see a problem with" I can deposit an encrypted hard drive in your mailbox, knowing that you will keep it at home at least for a few days out of curiosity, and immediately call the anonymous tip-off line saying you are a kiddie fiddler. See you in ten when you get out of the slammer. How do you like them apples?
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Tuesday 28th February 2012 09:15 GMT rtli-
Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
"With the law you "don't see a problem with" I can deposit an encrypted hard drive in your mailbox, knowing that you will keep it at home at least for a few days out of curiosity, and immediately call the anonymous tip-off line saying you are a kiddie fiddler. See you in ten when you get out of the slammer."
How fortunate we have a jury-based legal system based on evidence, rather than the deranged examples of an internet poster.
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Tuesday 28th February 2012 09:54 GMT Hayden Clark
Re: Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
Nope - you'd still stand trial. If you could *prove* that the drive was given to you recently, you would be acquitted. Best of luck with that.
Also, remember. They Police seize your drives on a (erroneous/malicious) tipoff. You give them the keys (as you have to). They find no child pornography.
They do find:
* Your MP3 collection
* A ripped DVD or two, plus perhaps a copy of DVDRipper/DVDShrink.
* A few "choice" videos and images in your brower cache
* Some software you maybe installed from work with no license
* Your Windows OS is a key-hacked one, as you lost the key to your OEM install or change too much hardware or something.
* You're an "Occupy" activist, and you were arranging a protest.
... and so on.
All this stuff will get passed to the appropriate authorities. You *will* get nicked for something.
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Tuesday 28th February 2012 10:15 GMT rtli-
Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
"That's a nice contradiction you have there. Either you are forced to reveal the password OR you can claim that you don't know it."
Yep, that's the size of it. If you know it, you have to reveal it. If you don't know it, you have to reveal that you don't know it. Except...that's not a contradiction (http://en.wikipedia.org/wiki/Contradiction). I think you mean dichotomy (http://en.wikipedia.org/wiki/Dichotomy). Now explain to me why a dichotomy is a bad thing in law?
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Tuesday 28th February 2012 14:21 GMT Graham Marsden
Re: Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
@rtli-
"How fortunate we have a jury-based legal system based on evidence, rather than the deranged examples of an internet poster."
Yet one particular deranged internet poster seems to be happy with the idea of instead of a Jury being told "If the prosecution can't prove their case, you *cannot* find the defendant guilty" them being told "if the defendant cannot prove his innocence you *must* find them guilty".
"Now explain to me why a dichotomy is a bad thing in law?"
Apart from playing sad little word games, you really don't understand this principle of "Presumption of Innocence" do you? Under the system you propose, you either have to incriminate yourself by revealing your password or incriminate yourself by saying "I don't know it" in which case the prosecution says "AHA! He clearly has something to hide therefore the jury must find him guilty!"
Presumed guilty until proven guilty. Bravo.
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Tuesday 28th February 2012 14:34 GMT Intractable Potsherd
Re: Re: Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty... (Graham Marsden)
Well done, Graham - I wish I wasn't limited to one thumbs up! It really is frightening how willfully ignorant some people are of the presumption of innocence and the need for the prosecution to build an adequate case that will persuade a jury to convict the suspect.
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Tuesday 28th February 2012 14:54 GMT rtli-
Re: Re: Re: Re: Re: Re: Re: Re: Re: Meanwhile, back in Blighty...
"...or incriminate yourself by saying "I don't know it" in which case the prosecution says "AHA! He clearly has something to hide therefore the jury must find him guilty!""
Is _that_ where you were going with that? If your problem is the "guilty until proven innocent" aspect of RIPA, you should have bothered to mention it at any point before this. Transferring the burden of proof is clearly crap. So is totally failing to make a coherent argument, though. Try less tempestuous rambling, more actually bothering to state your point.
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Tuesday 28th February 2012 17:43 GMT rtli-
Re: Oh deary, deary me, rtli-
"fallacies in your arguments"
No, I stand by everything I said. I don't believe the Fifth Amendment has any place in that ruling, and I don't have any issue with making withholding a crypto password a criminal offence. The only problem I have is with transfer of the burden of proof. But if you have encrypted the hard disk on your computer and you fail to hand over the password, despite a warrant, you are deliberately blocking the police from accessing evidence, and you deserve a sentence irrespective of whether you were even a suspect in the case.
Blocking the gathering of evidence wastes time and police resources, and that impacts society negatively. This is precisely why we have laws: to protect society from individuals who believe they are more important than other people.
(I'm talking about you there, by the way.)
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Tuesday 28th February 2012 20:46 GMT Graham Marsden
Re: Re: Oh deary, deary me, rtli-
"This is precisely why we have laws: to protect society from individuals who believe they are more important than other people."
Society has Rights such as the Presumption of Innocence and the Right to Silence to protect individuals from the authorities (and people) who believe that convicting someone of a crime is more important than protecting the liberties of everyone.
(I'm talking about you there, by the way.)
"Better a hundred guilty men go free, than one innocent man suffer." - William Blackstone.
"Better a hundred innocent men suffer, than one guilty man go free" - rtli-
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Tuesday 28th February 2012 21:33 GMT rtli-
Re: Re: Re: Oh deary, deary me, rtli-
"Better a hundred guilty men go free, than one innocent man suffer." - William Blackstone.
That would be Benjamin Franklin. William Blackstone said "ten". But don't bother researching this stuff before spouting it, or anything. Regardless, you're applying it wrong.
If I follow your argument to its conclusion, the police should never be allowed to perform _any_ action, since it would be presuming guilt. No arrests. No searches. After all, there's almost certainly a 1% chance they'll get it wrong.
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Wednesday 29th February 2012 00:07 GMT Graham Marsden
Re: Re: Re: Re: Oh deary, deary me, rtli-
Oh deary, deary me. Once again, rtli- you ignore the argument and, instead, attempt a pathetic point-scoring exercise. "Oh look, Graham said ten instead of a hundred, I WIN!!!" Yeah, whatever.
As for your "rebuttal" this is *why* we have things like the Right to Silence and the Presumption of Innocence and Due Process and the requirements for Search Warrants and Habeas Corpus and all those other pesky little things that you seem to be quite content to sweep away just to "help Police with their enquiries."
I'll leave you with the words of Thomas Moore in "A Man for All Seasons":
* * * * *
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
* * * * *
Feel free to get the last word in (I'm sure you will). I've wasted enough time here.
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Wednesday 29th February 2012 08:25 GMT rtli-
Re: Re: Re: Re: Re: Oh deary, deary me, rtli-
"As for your "rebuttal"."
All I've done is use the same logical fallacy as you (reductio ad absurdam), on your own argument. I also pointed out that appeal to authority, which is also a fallacy by the way, works better if you (a) understand the context of the quote, and (b) actually get the quote right.
"I've wasted enough time here."
Ah, the time-honoured act of storming out. Ta ta.
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Wednesday 29th February 2012 00:53 GMT ElReg!comments!Pierre
@ rtli- about contradiction.
> Yep, that's the size of it. If you know it, you have to reveal it. If you don't know it, you have to reveal that you don't know it.
No. Either you have to reveal it, or you don't. If you have to (as is the case currently in Blighty), you cannot claim that you don't know it (unless you can prove that you don't own the device, but if it was found in your possession and the malicious poster was smart enough to not leave a money trail, good luck with that). The contradiction that you don't want to see is, as I previously said, either you _have_, as in _are required to_ provide the password, OR you can claim that you do not know it. These options cannot coexist under the same law. There is therefore a clear contradiction in your post, where you say that you see no problem with people _being required to_ provide the password because they can still plead ignorance. That's just not compatible. That parrot is not resting. It's an ex-parrot.
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Wednesday 29th February 2012 08:54 GMT rtli-
Re: @ rtli- about contradiction.
"You _have_, as in _are required to_ provide the password."
I wasn't defending the entirety of RIPA as written, just the notion that withholding a password be a criminal offence. Theory, not implementation.
"Either you have to reveal it, or you don't."
Having to reveal it if you know it is not inconsistent with not having to reveal it in every situation. You're trying to create a dichotomy where none exists.
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Wednesday 29th February 2012 23:36 GMT ElReg!comments!Pierre
Re: Re: @ rtli- about contradiction.
> Having to reveal it if you know it is not inconsistent with not having to reveal it in every situation.
No, in the hypothetical case of a legal system in which you only have to reveal _if you know it_, that could work. However, the law as it stands requires you to reveal the password. Not to reveal _whether_ you know the password. To give the actual damn thing. You are NOT allowed to say "sorry I don't know/remember it". You _have_ to give it up. If you can't, then you won't, and you're a criminal. Simple as that.
And don't feign ignorance, that is the very aim of the law (to stop those dangerous paedorists using the "I don't remember" excuse). And you bloody well know it, as shown by you previous posts.
> You're trying to create a dichotomy where none exists.
I am not creating a dichotomy, just outing your lies.
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Thursday 1st March 2012 00:01 GMT ElReg!comments!Pierre
Re: Re: Re: @ rtli- about contradiction. (@ me)
> I am not creating a dichotomy, just outing your lies.
Sorry for that line if you are sincere on your posts being ẗheoretical as, you lately claim. Your earlier wording is certainly suggesting otherwise, but hey, malice shouldn't be always presupposed when stubborness fits the bill just right.
I won't withdraw my post though.
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Thursday 1st March 2012 20:29 GMT rtli-
Re: Re: Re: @ rtli- about contradiction.
"In the hypothetical case of a legal system in which you only have to reveal _if you know it_, that could work. However, the law as it stands requires you to reveal the password."
True and true. What I was originally responding to was the line:
"Remember than in Britain it's now a criminal offence *not* to give up your password if the Authorities demand it."
Now I interpret "if the Authorities demand it" as meaning by way of contrast to the ruling in America, viz that it would be against the Fifth to _ever_ have to give up your password. The legal checks and balances behind "the Authorities demand[ing] it" don't enter into the discussion. So explain to me why I'm suddenly accused of supporting every part of RIPA? All I'm after is middle ground: due process _and_ the authority to search for evidence.
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Friday 2nd March 2012 23:30 GMT ElReg!comments!Pierre
Re: @ rtli- about contradiction.
> All I'm after is middle ground: due process _and_ the authority to search for evidence.
Good luck in your search.for middle ground. There's none. Either you have to provide the password no matter what, and in this case tough luck if you don't have it/don't remember it, OR you don't have to provide the password, in which case expect crims and innocents alike to refuse to provide it, for protection and/or privacy reasons Or just because they can, which is as good a reason as any.
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Monday 27th February 2012 17:23 GMT Trevor 7
If they know he is a kiddie fiddler why do they need the disks?
The real issue is that if the police already "know" he has pictures, then why do they need the disks? If they don't really have any other evidence then all they have is an accusation.
And if you think that just an accusation is enough, you clearly not dealt with the demographic of people known in the US as "White trash". These are the petty, selfish individuals that live for immediate gratification and inflated egos. They have no issue with lying to get revenge. They are the reason that Child Protective Services anonymous tip line is called the white trash revenge tool.
Those of us accustomed to dealing with intelligent honest individuals may not understand why the 5th amendment is there, but after just a few encounters with people lacking those traits will quickly understand why it is there.
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Monday 27th February 2012 18:21 GMT kain preacher
Khaptain
Look up the McMartin trial.
http://en.wikipedia.org/wiki/McMartin_preschool_trial.
All some has to do is make a complaint and the cops will haul you in for questioning . Even anonymous complaints will be investigated by child protection services. You have cases of kids being ripped out of homes for 30 days only for a judge to say it's unfounded . If you have to many complaints even if the all are unfounded they will take you kids away to air on the safe side. That kind of stuff shows up on an enhanced background check .
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Monday 27th February 2012 18:43 GMT chris lively
Fishing
Cops, by their nature, routinely go on "fishing" expeditions. The idea being to simply let a suspect talk their way into a chargeable offense. This has been going on for as long as there have cops.
So the situation could simply be that someone accused this guy of peddling child porn. The cops try and see if it's true. However they can't find any real damning evidence. The "victim's" parents keeps on them and are very convincing in their demands for justice.
This is enough to convince a judge to let them raid the guys house and take his computers. However, being encrypted they still don't have anything.
Meanwhile, the guy was straight up and never did anything like this. However, maybe he browsed a few adult sites and maybe that history is stored on one of those computers. Heck, maybe he downloaded 1,000's of videos... But, to his knowledge everything was perfectly legal.
It's possible that a picture of a 17 year old is on those disks. It's equally possible this guy never went looking for it and certainly didn't intend to download that. However, as we all know, browsers grab whatever shows up on a page...
Now if the cops find 1 ( one ) naked picture of a person under 18 on those drives he goes to jail and is branded a pedophile for the rest of his life. The person doesn't even have to actually be under 18; just look like it with no way to verify age.
That said, would you turn over the encryption keys of your hard drive? The answer should be hell no.
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Monday 27th February 2012 19:44 GMT MissingSecurity
Re: Cmon guys read the paper
Whats trying to be protected is the 5th amendment, which by definition is trying to protect against abusive governments.
While this sounds cut and dry, your still looking at this from an emotional state rather than a right. Regardless of the case, we are granted this right, and it important to defend it even when you may be demonized for protecting a pedo.
We know the popo were watching him, we know they have a fairly solid circumstantial case. I think the police were accustomed to being granted access, and a judge fairly ruled in favor of the constitution. You might argue had they not been relying on this encryption being granted, they may have tried a different more sure tact, since if this guys was routinely renting to distribute, you could have caught him in the act rather than relying on this.
I think the integrity of our system (and possible the blighty system) is for people accept we grant people rights, regardless of our judgements.
I have encrypted drives with nothing on them of consequence (not even porn), but I wouldn't give my keys to prove my point just because the government want them. I don't see why this is an issue if they feel they can already incriminate him.
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Monday 27th February 2012 21:21 GMT kain preacher
Re: Re: Re: Cmon guys read the paper
Lets stick with the porn theory . There is a charge in the federal and most local statues that makes posing obscene porn illegal. What is obscene porn ? It's defined by the local community. So just because it's legal in one area does not mean it will be legal some were else in the United States . Oh and people seem to have this twisted notion that only perverts look at porn. So even if it's legal you are pervert and must be kept away from kids . Look at the GOP and these so called family values.
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Tuesday 28th February 2012 09:17 GMT rtli-
Re: Re: Re: Re: Cmon guys read the paper
"Lets stick with the porn theory . There is a charge in the federal and most local statues that makes posing obscene porn illegal. What is obscene porn ? It's defined by the local community. So just because it's legal in one area does not mean it will be legal some were else in the United States . Oh and people seem to have this twisted notion that only perverts look at porn. So even if it's legal you are pervert and must be kept away from kids . Look at the GOP and these so called family values."
But that's not relevant to this case. Just because there's one law you disagree with, doesn't mean all laws should be reinterpreted on the off-chance it offsets the law you don't like.
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Monday 27th February 2012 20:49 GMT Anonymous Coward
Hey, I'm prepared to believe this guy is guilty.....
However, that doesn't meet the standards of guilty beyond a reasonable doubt. And his 5 disk drives could be full of kiddie porn, or they could be full of pictures of him with adult sex partners (perfectly legal, but you wouldn't want it being ogled by the cops), or emotional personal correspondence, or evidence of illegally sheltered personal income, or pirated music and videos--or just about anything else you can imagine!! Maybe he just doesn't like cops and he thinks that the 5th amendment should protect him from having to cooperate in that manner.
Here is a common example of self-incrimination when the cops already (should have) evidence against you. Do you know how cops ask you "Do you know how fast you were going?" when they pull you over for a speeding stop? Well, under the 5th amendment you don't have t answer that question. Its a common ruse/trick of sorts among traffic cops to get you to boost the state's case against you through self-incrimination. And remember "Whatever you say can be used against you in court", so once you say or provide something, it can be used against you, even if you admit you were doing 40 mph in a 35 mph zone.
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Monday 27th February 2012 20:55 GMT ph0b0s
Paedo case = common sense / logic bypass
You can see why it is always crimes involving children or terrorism that are used to test case law. Nothing bypasses peoples facility for common sense and logic like cases involving these emotive subjects. These types of cases means people are happier for rights they have enjoyed, to be eroded, than they would be under different circumstances.
It is true that this 'dodgy' sounding person might get off scot free. In the same way that sometimes murders get away with it, due to lack of evidence. But out come the cries that letting a Paedo get way with it, can never be allowed to happen, even if the law has to be put aside to stop it.
If it was the Justice Dept trying to get a judge to force someone who allegedly broke a companies DRM, on a device they own, against DMCA to decrypt their hard drive so the hack can be discovered. Or a hard drive with evidence that someone was speeding / driving dangerously in their car. I know the reaction would be completely different, even though the same case law applies to both scenarios.
The idea that you have your liberty taken away (the result of contempt of court or defying a RIPA requestion in the UK), becuase you will not divulge something that will lead to your incrimination, is completely analogous to to a confession under duress / torture. In the US the Supreme Court already have ruled on this, as in you cannot be forced to pull a pass code from your head to unlock a safe. An encrypted hard drive is completely analogous to a safe with a combination.
The advent of encryption means investigators have to think of more inventive, legal, ways of gaining the evidence they need, rather than relying on the justice system to bail them out, by eroding peoples liberties. People's respect for the principle of innocent until proven guilty, should be no different whether the alleged crime involves children or speeding. Something quite a few commenting here seem to have forgotten.
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Monday 27th February 2012 23:18 GMT ph0b0s
@Khaptain
If they crack the HDD and find evidence why can they not arrest him again. Did not think double jeopardy applies if the charges are dropped, before the end of the case. It is only if a jury finds him innocent that you cannot retry him on the same evidence for the same charge. If you have new evidence, I am not aware of any reason not to charge him. Then you even add the charge of possession of child porn where at the moment he is charged, I assume, with distribution.
If there is not enough evidence the alleged criminal gets to walk, even if an alleged paedo. There is not one justice system for alleged paedos and one for everyone else, as much as people might wish that was the case.
And why you ass stand up for the rights of a alleged paedos? I do becuase I know these cases against paedos, are used as the thin end of the wedge, to set bad precedent that will be used against everyone else accused of a crime. This something most calling for blood seem to miss....
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Monday 27th February 2012 23:44 GMT Criminny Rickets
Re: Kiddie Porn and Speeding
@Khaptain
The guy may not necessarily walk away as you put it. If my understanding of US law is correct, once the investigation has started full swing, the police have so much time to bring the person to trial, which I believe is 7 years, but again, could be wrong. As the guy doesn't have to give up his keys, this just means the police have to try other ways. They could try and get an agency to decrypt the drives, so in 5 months when they do, then there's your evidence to bring him to trial. Alternately, put a stakeout on the guy when he goes and checks into different hotels. There is probable cause that the guy would do it again, so they should have no problem getting a warrant that says they can enter his hotel room when they see the same type of videos being uploaded to Youtube from this hotel. They quickly enter the room while he is sending files, and before he had time to lock his hard drives down again, and thus is caught in the act. No more worries about 5th Amendment rights.
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Monday 27th February 2012 23:46 GMT ph0b0s
@Khaptain, one last thing on your comment
"The facts in this case are pretty damned strong in relation to this guy being guilty."
If the 'facts' are so 'stong' they should be able to convict on those 'facts' alone, without having to force him to cooperate in convicting himself. It's not the suspect's job, but the police / prosecution's, to gather good enough evidence. If they cannot due to technology etc, it is their problem not the suspects.
It may mean law enforcement needs their own versions of NSA supercomputers to break encryption. In the same way police needed faster squad cars to catch criminals in fast cars. They did not change the way the justice system works, just becuase criminals could literally out run the law. It is all a money issue where authorities would rather erode freedoms, than resource their law enforcement properly.
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Tuesday 28th February 2012 00:17 GMT mad_dr
Re: Thumbs Down
Khaptain, I think a lot of us DID try to offer an explanation why we disagree with your view, on several occasions but it seems that, for whatever reason, we're not explaining ourselves in a way that overcomes your adamance of your views. This is not a problem but it doesn't mean that no one has tried to explain their views or offer alternatives when they run contrary to yours.
My opinion is that in this example, the subject matter - although contentious - is entirely irrelevant. The point is that someone who has not been convicted of any crime is, by definition, innocent. Moreover, enshrined in law is a right, shared by all, that determines that no one can be forced to give up information that could be used against them to secure a conviction, no matter how distasteful the crimes that they are accused of committing, are.
Whether you agree with this right or not, is also irrelevant: it's there to protect everyone (including YOU).
I don't thing you'll find a single person here, even us child-free ones, who would feel sorry for this John Doe if he's found guilty of child-pornography charges, however the folks who downvoted you probably simply feel that your apparent willingness to erode rights such as the 5th Amendment, for any reason, would be a dangerous precedent with potential far-reaching consequences. The phrase "Thin end of the wedge" has been used here and is quite apt. People have seen too many examples of legislation, rights and laws being tampered with and distorted to erode the rights of the public and so are increasingly resistant to any attempt to 'cheat' by the guvmint or associated bodies.
There have been a number of good examples and analogies provided in replies to your posts so I shan't try to improve on them but if you don't understand why people disagree with your views then I can't help you. If nothing else though, the downvotes show that you got people thinking. Feel free to downvote this if you like! :)
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Tuesday 28th February 2012 00:18 GMT Criminny Rickets
Re: Thumbs Down
Actually, a lot of people have given well thought you and reasonable reasons for disagreeing with you, which you seem to have totally ignored. As one person said, if this were about evidence of hacking or speeding, there would not be a big do about this ruling, but because it's about suspected child abuse images, the emotional aspect is driving people like yourself to disagree with a ruling you may otherwise agree with.
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Tuesday 28th February 2012 00:20 GMT Anonymous Coward
Re: Thumbs Down
I email people with private thoughts that I wouldn't want my children, spouse or parents to read. One very convenient way to archive them is via TrueCrypt. Revealing the contents of those thoughts in a public forum (like a court trial) would cause enormous pain to the people most dear to me.
Now say some law officer demanded that I decrypt this info for the court, or face child porn charges. I'm sure you'll find the solution to this conundrum extremely easy/
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Tuesday 28th February 2012 00:21 GMT Old Handle
Re: Thumbs Down
Right then, you want to know why the thumbs down. Fair enough.
It looks like your biggest thumb-magnet posts were "The law is there to protect us." and "Re: Re: The law is there to protect us." at 16:18 and 16:42 respectively.
The first one makes almost no sense, except for the last line, which seems to suggest this is some special law just for paedos, which, of course, it isn't.
In the second post, you resort to /argumentum ad baculum/, by implying that if the case is not handled as you think it should be, our children will be raped. (This is kind of offensive, in case you didn't know.) And then go on to say that because the police think he's guilty, he probably is. Which might be statistically true, but completely misses the point. That point being, that the police have to prove they are in fact right, to various degrees, every step of the way, which is a really fundamental part of our legal system.
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Tuesday 28th February 2012 04:03 GMT ElReg!comments!Pierre
Re: Thumbs Down
You consistently presented all the most stupid ideas that go around in these cases, and which have destroyed so many innocent lives, in sequence.
-Nothing to hide, nothing to fear: Check
-The police must have done their job; they never go on fishing trips: Check.
-The greater the alleged crime, the less important it is to not wrongly convict an innocent: Check.
-The protection of law doesn't apply to people accused of crimes that emotionally touch me: Check.
-And a few other minor things along the way, such as pretending that he was lugging all the several encrypted laptops and drives with him, etc...
That's pretty much a strike.
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Tuesday 28th February 2012 14:53 GMT Intractable Potsherd
Re: Thumbs Down
I don't like to repeat arguments that others have already put very well. That makes for a very boring thread. If you look at responses to your comments that get thumbs up, you will be able to glean what we silent folks find wrong with your arguments.
Knowing when not to write is as valuable as knowing when to.
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Monday 27th February 2012 23:47 GMT kain preacher
Khaptain
"Can you imagine this hypothetical situation, the police will probably clone the disks, this guy will walk away bacause of the 5th amendement. A couple of months down the line, one of the agencies will crack the code and find the some disturbing images and will be able to do nothing about it........And you don't find that sad." Under what theory of the law would they not be able to charge the person. I'm going to go out on a limb and saw that you do not live in the US. If you do you have a sever ignorance of American law .
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Tuesday 28th February 2012 08:27 GMT Citizen Kaned
maybe....
they should say ok, we cant charge you. but, we will hold you until we can crack the encryption. surely if he IS innocent he can unlock the HDD and prove he is innocent. if he is guilty he will not unlock it and will do his time anyway. i thought in this day and age of super GPU brute force etc that the gov can crack encryption?
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Tuesday 28th February 2012 10:28 GMT Ken Hagan
Re: maybe....
"i thought in this day and age of super GPU brute force etc that the gov can crack encryption?"
See http://en.wikipedia.org/wiki/Brute-force_attack.
In summary, for any sensible encryption algorithm you can kick brute force attacks so far into the long grass that no-one will ever be able to brute-force them with existing computer technology, regardless of their budget.
The NSA *may* be able to decrypt this hard drive if they have access to working quantum computers or if they are aware of a systemic weakness in the algorithm. The former would put them several decades ahead of the "open" scientific community in a field closely intertwined with fundamental physics, which seems unlikely. The latter is possible, but if it is true then I wouldn't expect them to decrypt this guy's drive. That would effectively reveal to every foreign government that the US can read all their secrets and I'm sure the NSA wouldn't want foreign governments to know that.
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Tuesday 28th February 2012 13:42 GMT Fred Mbogo
Re: American way of thinking
Way to disregard the several comments that posters gave you, thoroughly explaining why you got voted down.
I sincerely hope you never fall in the hands of cops and prosecutors looking for headlines. Your rights will be worth as much as the sock that your jail-husband will stuff in your mouth as he complies with his marital duties.
If someone did that little trick of sending you a poisoned chalice (and to be an utter dick, installed said drive and configured your OS not to report that the drive is present, so that the system has evidence of the drive being part of the system), you'll have very, very little chance of proving your innocence.
Please stop arguing with your heart and start thinking with your head.
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Tuesday 28th February 2012 14:29 GMT Anonymous Coward
Re: American way of thinking
right. because obviously only americans believe that people (should) have rights?
cases like this are ridiculous.
"we're so sure this guy is guilty, and we can prove it just fine without your help... but uh, because we're so sure, would you mind compelling him to give us what might be some more evidence, or might just be highly amusing personal private information for us to poke through? we can prove he's guilty anyway, so you shouldnt feel bad about making him hand the stuff over - after all, he's a kiddy fiddler, we can prove it. honest. we'd just like this information to make sure, rather than actually proving it in advance. obviously we *could* prove it in advance, we just... dont want to. and really, theres no harm, is there. he's only one of those subhuman kiddy fiddlers. maybe."
it really is just stupid.
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Wednesday 29th February 2012 01:13 GMT ElReg!comments!Pierre
Re: American way of thinking
Born in France, currently living in Canada*. I lived in ol'Blighty too for a while, I rather liked it. Except for the weather I must say, but that what beer^H^H^H^H umbrellas are for.
There's no shame in accepting that some of your postings were misguided when you are presented with several well-constructed rebuttals, you don't have to resort to /ad/ /nationem/ insults.
*I must admit to several incursions south of the border over the years, but I think I got out pretty much unscathed. I'm not contaminated. Seriously, I'm not, you can open that door now. Hahaha that was a funny joke, open the door now. C'mon it's not funny anymore. What are you doing with that flamethrower? NOOOOOOOOOOOOOOOooooooo........
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Tuesday 28th February 2012 18:17 GMT Vic
Re: The British way of thinking
> the need to create a "5th Amendment"
There is no such need.
The Fifth Amendment already exists.
> In Britain it has become a crime to withhold information ... they have
> simply understood that there is now a need.
Not so. We have merely had this illiberal legislation forced upon us by a government with no effective opposition. It's not as if they didn't know what they were doing - I, along with many others, wrote to the Home Secretary to point out the issues with this dreadful law. Didn't that do a lot of good...
It's going to be a long time before we get a government with the balls to do something about this travesty :-(
Vic.
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Tuesday 28th February 2012 18:22 GMT Graham Dawson
Re: The British way of thinking
No, there is NOT a need. There is a desire by the state for more power. The government of this country doesn't NEED to see the contents of my encrypted drives any more than it needs to see the inside of my underpants, no matter how much they may want to air my dirty laundry. Unless they have some evidence that I'm committing a crime, they have no right to rifle through my private things - they certainly have no right to look just because they think they *might* find something. The mere fact that they've written a law that grants them the power to do this doesn't give them any moral right to do it nor does it justify the abuse of people with no power at the hands of the ever more powerful state.
Your justification of this sort of "law" is a mockery of everything our ancestors fought to gain over the last thousand years. You don't deserve to live in this country.
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Tuesday 28th February 2012 19:13 GMT rtli-
Re: Re: Re: The British way of thinking
"If the majority decide not to vote against laws."
That's not how that works. People vote for parties (theoretically politicians but no in practise), and may do so even if they disagree with some of the laws that they may have passed. Treating a vote for a party as a vote for a law is highly flawed.
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Tuesday 28th February 2012 22:49 GMT Vic
Re: Re: Re: The British way of thinking
> If I remember correctly Britain is a democratic country.
You misunderstand British "democracy".
> If the majority decide not to vote against laws
Nobody got the opportunity to vote against these laws.
There are essentially three parties with a cat in hell's chance of getting elected. Precisely *none* of them took a stance against RIPA at election time (even if some in opposition had used it to slag off their opponents earlier).
So what do we do? Vote for a party that embraces RIPA? Refuse to vote and be described as "apathetic"? There is no "none of the above" option in our voting system, and raising the capital to field enough candidates to make a difference is far from trivial, even if you had the support.
Vic.
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Tuesday 28th February 2012 19:10 GMT rtli-
Re: Re: The British way of thinking
"No, there is NOT a need. There is a desire by the state for more power."
Saying it doesn't make it so. There IS a need to rationalise our legal system with modern technology in a consistent way. Not doing so leads to a morass of loopholes and ill-informed precedent.
Arguing all new laws are just power grabs is rather paranoid and may suggest more about the speaker than the subject. You're not from a background of habitual power plays are you? Hostile takeovers, maybe? Or S/M?
"Unless they have some evidence that I'm committing a crime, they have no right to rifle through my private things."
Yes, they do have that right. Always have. The question is, how does that extend consistently to the digital domain?
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Tuesday 28th February 2012 20:05 GMT kain preacher
Re: Re: Re: The British way of thinking
"Unless they have some evidence that I'm committing a crime, they have no right to rifle through my private things."
Yes, they do have that right. Always have. The question is, how does that extend consistently to the digital domain?
Not in the US. Unless you arrest some right then and there you need a warrant to go through my stuff. Even then the validity of the warrant. You don't like the 5th amendment . Now you want to toss out the 4th amendment . While you are at it lets toss out the 8th amendment . First off you are getting US law wrong then you substitute your opinion as fact . When people explain this to you you get mad and say no is explaining to you and just down voting you . On top of the the values that are expressed in the 5th and 4th amendment is some thing most reasonable folks want in civilized world. I mean what wrong with making the government give you due process and getting a warrant ? whats wrong with banning forced confessions and self incrimination ? The thing is you can not pick and choose who gets what rights. No has a the right to deny rights to any one with out first being convicted of some thing.
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Tuesday 28th February 2012 22:06 GMT rtli-
Re: Re: Re: Re: The British way of thinking
"Not in the US. Unless you arrest some right then and there you need a warrant to go through my stuff. Even then the validity of the warrant. You don't like the 5th amendment."
I'm pretty certain you misunderstood me. If they are able to get a warrant, they are able to go through your private things. All they need for a warrant is probable cause, not evidence. And I'm arguing that warrant naturally extends to digitally-protected media, just as it does locked doors protected with keys.
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Tuesday 28th February 2012 22:02 GMT Graham Dawson
Re: Re: Re: The British way of thinking
First: I said that the law requiring we hand over encryption keys on their say-so is a power grab, not "all law".
Second: Yes there's a need to rationalise the law regarding such things. You know what rationalising means? It means streamlining, removing cruft, scaling back. Pruning. It certainly doesn't mean implementing a series of badly written, overbroad pieces of legislation that are routinely used to justify bin diving by local authorities, have no legal merit and go against the very concept of a free and democratic nation.
Third: I'm an electrician, I wouldn't know hostile takeovers if they, ah-heh, took over my tools. You're assuming what? That I share your sexual preferences perhaps? (See, two can play that smarmy insinuation game).
Fourth: THEY HAVE NOT HAD THAT RIGHT. EVER.
The power to do a thing is not in any way the RIGHT to do a thing.
The Bill of Rights 1689 declares "all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void"
This is one of the founding documents of the English constitution and it states, outright, that the state cannot seize property or levy fines against those who have not been convicted of any crime. They have no right to look through my drawers to find evidence to convict me with unless they have prior evidence and a warrant. They have *never* had a right to just waltz in and take things. Parliament may have ignored these documents, they may have decided they can take on any POWER they so choose but that has never given them the RIGHT. Learn the difference and you may begin to understand what justice and democracy really mean.
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Wednesday 29th February 2012 10:26 GMT rtli-
Re: Re: Re: Re: The British way of thinking
"You're assuming what? That I share your sexual preferences perhaps? (See, two can play that smarmy insinuation game)."
Are you suggesting S/M is a bad thing? Worse than hostile takeovers? I think there's a number of people who might disagree with you there.
Hmmm...electrician...power play...there's a pun in there somewhere, I'm sure.
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Tuesday 28th February 2012 22:14 GMT rtli-
"I said that the law requiring we hand over encryption keys on their say-so is a power grab... They have no right to look through my drawers to find evidence to convict me with unless they have prior evidence and a warrant."
Nobody said it should be "on their say-so". It should be with a warrant. Which they would have needed to get at the computer in the first place.
You appear to be labouring under the misapprehension that I'm defending every last in and out of the RIPA act. I'm not.
"Second: Yes there's a need to rationalise the law regarding such things. You know what rationalising means? It means streamlining, removing cruft, scaling back. Pruning."
Agreed.
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Wednesday 29th February 2012 02:19 GMT ElReg!comments!Pierre
What the floorumdrick?
> You appear to be labouring under the misapprehension that I'm defending every last in and out of the RIPA act. I'm not.
Yes you are. Every single post of yours in this thread -caveat: that I can remember of- is. You appear to be labouring under the misapprehension that we cannot read.
> It should be with a warrant. Which they would have needed to get at the computer in the first place.
Nope. There are numerous examples where electronic equipment was seized from passerbys, under alleged RIPA powers, without warrant, without even the slightest hint of evidence other than "they looked kinda funny". Do your homework. It has been reported here several times.
By the by, what is your street address again? I have here a HDD that contains nowt but old Linux kernels; suitably encrypted, too. I believe it will be premium evidence in a kiddie-fiddling case, should the hapless recipient -aka you- fail to provide the encryption key... Praise The Lord for that law aimed at paedos and terrorists. Such as you, obviously, because you refuse to give the encryption key to a device that was found in your possession.
Muppet.
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Wednesday 29th February 2012 08:32 GMT rtli-
Re: What the floorumdrick?
"Yes you are. Every single post of yours in this thread -caveat: that I can remember of- is. You appear to be labouring under the misapprehension that we cannot read."
You appear incapable of disentangling support for a principle (illegal to withhold a password) from an implementation (RIPA). If a law came out making it an offence to kill fluffy pet bunnies, and suspicion of the crime was under that law enough for conviction, would you start assuming anyone with a love of fluffy pet bunnies hated liberty?
TL/DR: it's not your reading skills I question, just your comprehension.
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Wednesday 29th February 2012 09:07 GMT Graham Dawson
Re: Re: What the floorumdrick?
The problem is the support for that principle itself. It's the equivalent of being forced to allow the police into our home at any time of day or night and it's been a principle of English law (can't speak for Scottish law) that the police or whichever authority happens to be around can't simply enter your property without your explicit permission unless they have a warrant from a judge.
The "principle" you support leads inevitably to travesties like RIPA *by its nature*, as it overrides a fundamental aspect of the common law.
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Wednesday 29th February 2012 10:14 GMT rtli-
Re: Re: Re: What the floorumdrick?
"The "principle" you support leads inevitably to travesties like RIPA *by its nature*, as it overrides a fundamental aspect of the common law."
I disagree. I believe it should be and could be a natural extension of the powers of a warrant, combining powers over a new domain (digital versus physical) with the tried and tested checks and balances of the old (review by a judge, no fishing expeditions, etc.). You can try and change what I'm saying so it fits in your neat little black-and-white world of RIPA versus total immunity from law all you like, but that just makes your arguments childish.
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Wednesday 29th February 2012 11:31 GMT Graham Dawson
Re: Re: Re: Re: What the floorumdrick?
The police could already get your encryption password with a warrant you blithering idiot. They had to have reasonable suspicion that it would provide them with firm evidence of a crime and they had to convince a judge that their suspicion was reasonable and not just a fishing expedition. Faced with that warrant you would then have to either hand over the keys or be held in contempt of court.
What you keep defending, however much you claim otherwise, is warrantless seizure of private property without anything other than vague belief that it might provide evidence.
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Wednesday 29th February 2012 11:54 GMT rtli-
Re: Re: Re: Re: Re: What the floorumdrick?
"The police could already get your encryption password with a warrant you blithering idiot."
Interesting. Did you even read my previous comments? The issue is whether not providing your encryption password even when the police have a warrant should be a criminal offense. In America, the judge is saying, no, because the Fifth. In Britain, it is in fact illegal. Which you admit. In fact, you admit it's always been that way since before RIPA. Yet arguing that that's a good thing is, somehow, arguing for the suspension of civil liberties.
Did you learn your superb disputation skills off a soap opera by any chance?
"What you keep defending, however much you claim otherwise, is warrantless seizure of private property without anything other than vague belief that it might provide evidence."
Maybe if I'm claiming otherwise, it's because I'm not defending it. But then that would undermine your argument, so I guess that can't be true, can it? No, go on, keep putting words in my mouth.
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Wednesday 29th February 2012 12:23 GMT Graham Dawson
Re: Re: Re: Re: Re: Re: What the floorumdrick?
The argument in the states is over whether the police could get a warrant for encryption keys. Your assumption seems to be that they must be allowed to get that warrant regardless of prior evidence and regardless of any legal protections that prevent the police from fishing for evidence. The judge said that the police couldn't get a warrant for the man's encryption keys because they had no reasonable suspicion; as a result, they would be forcing a breach of the fifth amendment in the same way that they would by forcing him to speak to them.
Similar, lesser protections did exist here until RIPA and its related laws came along. The police had to have reasonable suspicion and they had to convince a judge before they could get a warrant. They couldn't just say "we think we can find evidence". They had to prove it.
You're claiming that I was disputing this, when I was not: your position has been consistently that it's justifiably illegal to withhold encryption keys FULL STOP, that the fact that it's illegal to refuse to hand over encryption keys is a good thing in itself. The issue of warrants only came up when your earlier argument was revealed to be a pile of shite.
You argued that it's right that the police have uncontested right of access to encryption keys and that the law as it stands was good. I and others showed you that it was an unjust law in its intent. You then argued that you disagreed with RIPA in its current form and that the police should have warrant powers to get access to encryption keys. I showed you that they already had those powers prior to RIPA. Your argument now seems to be that I was arguing against the concept of warrants, which I was not and never have. I was arguing against your original contention that the police should be able to compel me to hand over encryption keys purely on their say so. You keep contradicting yourself.
And now you accuse me of putting words in your mouth. I would have trouble getting them past your foot.
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Wednesday 29th February 2012 13:01 GMT rtli-
Re: Re: Re: Re: Re: Re: Re: What the floorumdrick?
"Your assumption seems to be...your position has been consistently..."
No, that's just how you misinterpreted it. And when I explained that wasn't true (repeatedly), you didn't bother to go back and reevaluate what I had written before; you simply assumed I had changed my position, or was lying, and continued to claim that's what I said. Hence, "putting words in my mouth".
"The judge said that the police couldn't get a warrant for the man's encryption keys because they had no reasonable suspicion; as a result, they would be forcing a breach of the fifth amendment in the same way that they would by forcing him to speak to them."
And I think that's ridiculous. The upshot of the ruling makes sense, the ruling itself does not. Suppose you had strong evidence that the guy _was_ a paedo. Would it now no longer be against the Fifth to get him to testify? No! He has the right to remain silent no matter how much evidence you have against him, and it would be forcing a breach of the fifth whether or not they had a warrant.
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Tuesday 28th February 2012 23:54 GMT T J
Wow, Common Sense!
Sudden outbreak of common sense, I'll be damned! Maybe it will help make our modern, fashionably UNelected governments realize they have no rights in respect of our personal information WHATSOEVER.
And the Spooks? They will just carrying on what they do, legally, illegally or alegally - its what they are supposed to do.
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Biting the hand that feeds IT
