Compulsory production of encrypted files?
Razorback
seizes my computer with a valid search warrant. But they are unable to
decrypt the files. Can I be forced to decrypt them? Different attorneys
I've spoken with (I'm also an attorney) have different opinions. When I
point them to Hoffman v. U.S., 341 U.S. 479 (1951), some feel it's on
point and others don't.
Hoffman held that a defendant cannot be forced to provide testimonial
evidence that would furnish the prosecution with a link in the chain of
evidence. The debate is whether it's "testimonial in nature" to force
me to decrypt the files. The prosecutor types say NO, it's not
testimonial in nature since they don't care about the passphrase, they
only care about the encrypted files.
The defense types say YES, it's testimonial in nature since the
passphrase exists only in my head, and the government can't force me to
use information in my head to assist the prosecution.
Opinions?
EvilOppressorOfConservatives
"Razorback" <razorb...@hotmail.com> wrote in message
news:1146769126.2...@i40g2000cwc.googlegroups.com...
Hmmmm... This is VERY Interesting...
I *think* I saw an OLD B/W DRAGNET [circa 1956] Episode based on these
circumstances... Sgt Friday & Crew had obtained via Search Warrant, a
Bookie's [ENCODED] "Scrip Sheet", but Bookie was fixin' t'be RELEASED since
Prosecutor was having Difficulty Deciphering Notebook... Enter Smart [Yeah,
Right] Cop who Ostensibly DEcodes Notebook and to Bookie's Chagrin, is
CONVICTED...
[In a Moment, the Results of That Trial...]
So... if Your Hypothetical is based Largely on The Same Circumstances...
that SAPs HAVE your "ENCODED Data"... but CANNOT, Owing to Strong
Encryption, Decipher the "Evidence", *AS A MATTER OF LAW*... I *think* The
Court is POWERLESS to Force you to "Decipher" [By Providing Passphrase] it
For Them... MAYBE your Cited Caselaw addresses this Issue, but I don't have
time just now to Grab & Anylze it... Thus, this Supra is Just My
"Top-a-the-Head" Supposition...
To be a Little More Concise: IF SAPs have the Fruit of their Lawful
Search Warrant, That's ALL that can be "Extracted" from you... You Need
NOT/Can NOT be forced to "Explain" the Meaning of their Seized [Data]
Objects... that YOU CANNOT be forced to "Aid In Your Own Prosecution" - *AS
a MATTER OF LAW* - *As a Practical Matter*, The SHOCK & AWE of my Treasured
Computer being carted away by Jack-Booted Thugs/Official Public Bullies,
caused me to FORGET EVERY Password I _EVER_ Set... >:P
Lemme have a look at Hoffman v US...
Naughtius "I'll Get Back To Ya On That..." Maximus
--
"...He's a Rebel
And he'll never ever be any good
He's a Rebel `cause
He never ever does what he should..."
"The FIRST thing we do, let's KILL all the TVs"
"...And those that are Fools
Let them use their Talents..."
COMING SOON: naughtius.org
Taylor
"Razorback" <razorb...@hotmail.com> wrote in message
news:1146769126.2...@i40g2000cwc.googlegroups.com...
Obviously, this is a subtle issue that would need to be researched. You
won't get your answer here on this newsgroup.
Razorback
audience member posed this question, and the panelists disagreed with
each other. I then asked some of my attorney friends (on both sides of
the fence) and had the same type of split.
I find it an interesting issue that will inevitably land in court.
Scholarly discussion needn't wait until then, though.
Travis Jordan
Razorback
But he has lots of "if's," with many unanswered questions. Even his
conclusion is that the Fifth Amendment "probably" protects the
information inside my head. I guess we can safely say this is not an
area of settled law. Which makes it all the more interesting for
discussion here.
sidthedid
Who is to say you didn't just forget the key, it's not illegal to have a
bad memory (yet).
sid
Ernie Klein
sidthedid <sp...@yahoo.co.uk> wrote:
Or can't relate it to someone else...
Several years ago I was very Ill. It became necessary for someone else
to log into my computer. I told them my password that consisted of
three unusual words strung together. They tried and tried but couldn't
log in. They finally came to where I was and I wrote the password down
for them. Even with that, they still couldn't log in. They never did
succeed in getting logged in to my account.
After I got well, I went to my computer and using the same password,
logged right in, no problem.
It took me a while to figure out what was going on. Without realizing,
I had used the shift key to capitalize 2 letters in the password. Of
course the passwords were case sensitive. Capitalizing those letters
was an automatic reaction for me when _I_ entered the password, and
since the password is never displayed I never realized that I was even
doing it.
--
-Ernie-
"There are only two kinds of computer users -- those who have
suffered a catastrophic hard drive failure, and those who will."
Have you done your backup today?
Theodore A. Kaldis
> "Razorback" <razorb...@hotmail.com> wrote:
>> Opinions?
> I'm not a lawyer, [...]
So STFU then. You have nothing meaningful to offer here.
--
Theodore A. Kaldis
kal...@worldnet.att.net
Wayne Delia
Can you put this guy in his place, too?
> I'm not a lawyer, but I have beat 4 traffic tickets in 4
> different N.J. municipal courts. (And I am currently in
> California.) As to whether you should get a lawyer, I
> would say "absolutely". But it's going to cost you at
> least $500.
(you, on July 31, 2003, posting to misc.legal)
> I would tell him that the lease has expired, and that as of
> now, he is on a month to month basis. But that's me. And
> I'm not a lawyer, so this isn't legal advice (and I don't even
> know if it's legal).
(you, on August 31, 2003, posting to misc.legal)
> > Hopefully someone can help me with this questions.
> Not terribly much, because I'm not a lawyer.
(you, on July 16, 2004, posting to misc.legal)
> Now as is well-known, I'm not a lawyer, so you tell me if the
> above is anywhere at all close to reality. My legal "education"
> comes from watching movie and TV courtroom dramas (certainly not
> the best sources from which to learn about legal issues), from
> Perry Mason to Law & Order. (As for what I saw of the O.J. case,
> I think that would be best classified as "How NOT to Conduct a
> Trial".)
(you, on Sept. 15, 2003, posting to misc.legal)
> (Bear in mind that I'm not a lawyer, I'm an engineer by trade.)
(you, on August 17, 2003, posting to misc.legal)
> First things first. I'm not a lawyer. But your statement probably
> IS admissible, as it seems to have been freely given. Your rights
> have to be read to you only if they're arresting you, or else if
> they detain you for questioning against your will.
(you, on July 18, 2004, posting to misc.legal)
> No, but I know of a few instances where police in the course of
> executing a search warrant have come across pirated .mp3's, and
> have shown no interest (because that's not what they were looking
> for). (Also, I'm not a lawyer.)
(you, on May 14, 2005, posting to misc.legal)
> "Jack McCoy" [Sam Waterston] would always follow up such an
> assertion with a cite ("People v <whoever>"). Or is this such
> an elementary legal principle that all you legal types should
> know it by heart? (I am not a lawyer, I only watch them on TV.)
(you, on Sept. 16, 2003, posting to misc.legal)
> If it's a one-piece vehicle where the trailer does not separate
> from the cab, then you may only need one title for it. But if you
> don't have documentation for the origin of the trailer, then you may
> indeed have problems.
> [I'm NOT a lawyer, I just used to drive trucks many years ago.]
(you, on Dec. 9, 2005, posting to misc.legal)
> My advice (NOT legal advice -- I am an engineer, not a lawyer)
> would have been to take the exam, and if he failed it, work from
> there.
(you, on August 12, 2003, posting to misc.legal)
> That may even be worse. The officer has to reasonably believe
> that a threat actually took place (I'm not a lawyer, and I don't
> know what the actual legal term and definition of the threshold are).
(you, on December 2, 2005, posting to misc.legal)
> I'm not a lawyer, so I can't give you a definitive answer. But I am
> inclined to think not. Houses can be moved, after all. You are taxed
> on the value of your property and all the improvements thereon.
(you, on September 8, 1997, posting to misc.legal)
> I meant to mention (but neglected to) that I'm not a lawyer, so I
> can't speak to any of the legalities here. But the fact that he took
> the title indicates that a sale was made. From what I know about the
> auto business, I don't know of anywhere in the U.S. where even a
> dealer is required to accept a vehicle back and give a full refund in
> a case like this, let alone a private seller.
(you, on November 22, 2005, posting to misc.legal)
Go ahead, Toad! Tell that fat bastard to "STFU" too! Tell him he "has
nothing meaningful to offer here," too!
WMD
ronald...@gmail.com
Razorback wrote:
> It's not a real case. I was at a computer security symposium, and an
> audience member posed this question, and the panelists disagreed with
> each other. I then asked some of my attorney friends (on both sides of
> the fence) and had the same type of split.
It is a shame that Kevin Poulsen wasn't on the panel (as he sometimes
is at those things) because this happened to him. The government
wanted him to give up his encryption key(s) to files that he'd
encrypted twice via DES. At the time, it was apparently conlcuded by
the lawyers that he had no right to not giving up the key. While that
might seem to be self incrimination, as another poster has suggested,
apparently it is akin to having to give a handwriting sample, dna
sample (OJ), etc. as it is not testimony. Anyhow, Kevin held his
ground and didn't give up anything. So the governement sent the files
to the NSA which decrypted them.
Razorback
> So the governement sent the files to the NSA which
> decrypted them.
Assuming a valid search warrant, this is perfectly legal, akin to a
safe being seized via a search warrant
(Fourth Amendment, search and seizure). In my hypo, the government is
Ken Smith
Nice work, Wayne! Looks like another keeper for the archives. :) I
am sure they are more, but the point has been made.
It might not be as useful as the representative list of Ted's ethnic
and racial slurs, but any time he shows his ugly face in misc.legal, we
can use this to silence him. After all, if Ted's advice is so bad that
even *HE* wouldn't follow it, no one else should, either.
Theodore A. Kaldis
> Nice work, Wayne!
Nice waste of time, Wayne. How long did it take you to put all that
together? Don't you have anything better to do? Apparently not.
Either that, or you're just too irresponsible to do it.
> Looks like another keeper for the archives. :) I am sure they are
> more, but the point has been made.
What point? That I am honest?
> It might not be as useful as the representative list of Ted's ethnic
> and racial slurs,
All of which are out of context.
> but any time he shows his ugly face in misc.legal, we can use this to
> silence him.
"Silence" me? When has that ever worked?
> After all, if Ted's advice is so bad that even *HE* wouldn't follow
> it, no one else should, either.
Ken, I would suggest that YOU would do well to maintain YOUR silence.
After all, everyone here knows your story.
Taylor
In any event, the issue must be researched to provide an answer in this
case.
Ken Smith
> Ken Smith wrote:
>
> > Nice work, Wayne!
>
> Nice waste of time, Wayne. How long did it take you to put all that
> together? Don't you have anything better to do? Apparently not. Either
> that, or you're just too irresponsible to do it.
>
> > Looks like another keeper for the archives. :) I am sure they are
> > more, but the point has been made.
>
> What point?
That you are a sociopathic hypocrite, unwilling or unable to practice
what you preach. One example is enough to make the point below, though
ten show a pattern.
______________________________________________________
> > I'm not a lawyer, [...]
>
> So STFU then. You have nothing meaningful to offer here.
>
> Can you put this guy in his place, too?
>
> > I'm not a lawyer, but I have beat 4 traffic tickets in 4
> > different N.J. municipal courts. (And I am currently in
> > California.) As to whether you should get a lawyer, I
> > would say "absolutely". But it's going to cost you at
> > least $500.
> (you, on July 31, 2003, posting to misc.legal)
_____________________________________________________
Why should Kent STFU, but not you? Because you lick your own Jesus'
asshole clean after every shit, and that gives you thhhpecial status?
Practice what you preach, FatCheeks.
> > It might not be as useful as the representative list of Ted's ethnic
> > and racial slurs,
>
> All of which are out of context.
How so? Explain how this statement was taken out of context (I was
referring to one of the Columbia astronauts):
____________________________________________________
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>
> What "cute" hindu chick? Sorry, but I think the swarthy dot-heads are dogs.
> I wouldn't even f*** her with your d***.
> --
> Theodore A. Kaldis
> kal...@worldnet.att.net
___________________________________________________
Check out http://www.geocities.com/thisisaishwarya/ and tell us that
she's a dog. Personally, I have a pronounced weakness for blondes, but
I think you'd have to agree that she doesn't bear a passing
resemblance to Fido. (She looks a lot like the Greek girl I used to
date, in fact -- are *THEY* all dogs, too?)
There's no way to spin your remark into a respectable or even
sensible statement, Ted.
> > but any time he shows his ugly face in misc.legal, we can use this to
> > silence him.
>
> "Silence" me? When has that ever worked?
That you cannot control your tongue on a bet is proof positive that
you are not a follower of Jesus. You might call yourself a Christian,
but at this point, that could mean almost anything.
> > After all, if Ted's advice is so bad that even *HE* wouldn't follow
> > it, no one else should, either.
>
> Ken, I would suggest that YOU would do well to maintain YOUR silence.
> After all, everyone here knows your story.
Everyone knows my story, FatCheeks. So fuckin' what? Most people
think I was the victim of egregious injustice. Most people think Cam
Brown is a murderer, and with *VERY* good cause. Your point?
McGyver
> It's not a real case, I would never seek answers here. I posed it
> because I attended a symposium on computer security, and an audience
> member posed this question to the panel (of mostly prosecutor types),
> and they said the person could be compelled. A few defense lawyers in
> attendance disagreeed, but the panel wasn't really prepared for such a
> discussion, and moved on.
>
> I find this an interesting issue, one which will inevitably find itself
> in court. Scholarly discussion needn't wait until then, though.
>
> type of thing. If this is a legal aid forum and I'm treading on
> someone's toes, my humblest apologies).
This is the perfect forum for this discussion. Welcome.
McGyver
Wayne Delia
> Ken Smith wrote:
>
> > Nice work, Wayne!
>
> Nice waste of time, Wayne.
Not really. I was monitoring a time-consuming program on my home
computer, and while that was running, just took a few minutes to expose
your hypocrisy thirteen times over.
> How long did it take you to put all that together?
Not long at all. The Internet has the wonderful tool called Google,
which enables very rapid and comprehensive search results on a few
keywords. Using Google Groups Advanced Search, I entered your email
address, along with the search phrase "not a lawyer". That returned all
your posts, and I selected thirteen of them in which you did the same
thing Kent Wills did, for which you told him to "STFU" and that he
therefore didn't have anything worthwhile to contribute. To answer your
question, the search and related copy-and-paste took about eight minutes.
Why does that standard apply to Kent when he only did it once, but it
doesn't apply to you when you did it thirteen times? Could you maybe be
even the least little bit (gasp!) hypocritical?
> Don't you have anything better to do? Apparently not.
Sure. It's just that I was doing it at the same time, since what I had
better to do was pretty much running by itself for about a half hour.
> Either that, or you're just too irresponsible to do it.
I was multi-tasking at the time, and for that matter, the time was a
little after 1:00AM. By the way, did you ever figure out how to use an
"atomic clock" yet? You tried to depend on one to make a post close to
(but not later than) midnight, to make a point that you could refrain
from posting about Ken starting on a particular day, but you screwed up,
and the post was timestamped 12:01AM.
> > Looks like another keeper for the archives. :) I am sure they are
> > more, but the point has been made.
>
> What point? That I am honest?
That constant whooshing sound you hear is the point flying over your
planet-sized head. The point is you are a fucking hypocrite. You're a
hypocrite because you profess a standard (that Kent shouldn't post in
misc.legal, because in one post he admits he's not a lawyer) while not
following that standard yourself (you've made the same admission of not
being a lawyer in thirteen posts I located and cited, yet you seem to
hesitate to tell yourself to "STFU").
> > It might not be as useful as the representative list of Ted's ethnic
> > and racial slurs,
>
> All of which are out of context.
Of course; we take that into account. When you referred to one or more
ethnic groups as "ragheads and towelheads and slapheads and camel
jockeys," it was obviously constructive criticism meant in the best
possible manner. Sheesh.
> > but any time he shows his ugly face in misc.legal, we can use this to
> > silence him.
>
> "Silence" me? When has that ever worked?
It may have a chance to work if you took the time to understand why it
demonstrates your hypocrisy.
> > After all, if Ted's advice is so bad that even *HE* wouldn't follow
> > it, no one else should, either.
>
> Ken, I would suggest that YOU would do well to maintain YOUR silence.
> After all, everyone here knows your story.
But we don't know much of your story, Toad. Exactly why would you tell
Kent to "STFU" and that he "has nothing meaningful to offer here," when
you've done the same thing at least thirteen times?
And what do you mean by "STFU"? A standard acronym, which fits into the
context of your reply to Kent, has the meaning "Shut The Fuck Up." Did
you intend to convey that message, profanity included, or were you
referring to something else? If what you were actually referring to
didn't include profanity, why would you be too timid to spell it out? As
it is, you're too afraid to even address any of these issues.
WMD
EvilOppressorOfConservatives
> Let's say I have encrypted files on my computer, and the government
> seizes my computer with a valid search warrant. But they are unable to
> decrypt the files. Can I be forced to decrypt them? Different attorneys
> I've spoken with (I'm also an attorney) have different opinions. When I
> point them to Hoffman v. U.S., 341 U.S. 479 (1951), some feel it's on
> point and others don't.
>
> Hoffman held that a defendant cannot be forced to provide testimonial
> evidence that would furnish the prosecution with a link in the chain of
> evidence. The debate is whether it's "testimonial in nature" to force
> me to decrypt the files. The prosecutor types say NO, it's not
> testimonial in nature since they don't care about the passphrase, they
> only care about the encrypted files.
>
> The defense types say YES, it's testimonial in nature since the
> passphrase exists only in my head, and the government can't force me to
> use information in my head to assist the prosecution.
>
> Opinions?
RIGHT...
Ummm...
[ISSUE] Can the Owner of Legally Seized *ENCRYPTED* Computer Files be
[Lawfully] Compelled to DECRYPT those Files?
[RULE] OP offers Hoffman v. U.S., 341 U.S. 479 (1951) as The Standard for
Deciding this ISSUE... Essentially, Hoffman holds that one's Refusal, on 5th
Amendment Grounds, to Answer Questions before a Federal Grand Jury is
NEITHER "Contempt Nor Crime", EVEN IF the Subject is Mistaken in his Belief
of Self-Incrimnation... further, Hoffman provides a REMEDY of Immunity From
Prosecution if [The Court] believes that it would be More Beneficial [To
Some Vague Purpose] to obtain sought-after Information than Prosecuting [A
Subject] for Past Crime...
[APPLICATION] A Cursory Examination of Hoffman [More Later] reveals that
that Cite speaks to Disparate Issues... Hoffman, generally, holds that it is
No Crime or Contempt to [Even mistakenly] REFUSE, On 5th Amendment Grounds,
to provide "Personal Testimony" at The State's demand... OP's Hypothetical
seeks to Discover whether [Presumably] one can Be Compelled to, via a
PassPhrase, DEcrypt the sought-after information, which may very well be,
and Likely IS, "Personal Testimony", by its Very Nature...
[CONCLUSION] *This* Finder of Fact asserts that, inter alia, Hoffman DOES
NOT Provide a Basis for Compelling the Owner of *ENCRYPTED* Files to
DEcrypt... To "Translate" the UNintelligle Data Contained Therein, for The
Benefit Of those who Seek what cannot be viewed as Any Other Thing than
"Testimonial Evidence" with which - NOT To Discover Birthdays, Thus, To Send
Cakes and Flowers - BUT To Prosecute that Person on the basis of the FORCED
[DEcrypted] File... Additionally, Prosecutors have NO General Authority to
"Peruse" Files/Records... whether or not they are Legally Seized, as such
albeit, Legally Seized "Records" may very well be, or contain Otherwise
PRIVILEGED/PRIVATE Information... Finally, as is Set Forth in Hoffman,
[A/The Court] has the ability to "Find/View/Dicover" the Important
Information it seeks by Granting Immunity From Prosecution to the Owner of
ENCRYPTED Files
Naughtius "667 - The Neighbor Of The Beast" Maximus
--
"...He's a Rebel
And he'll never ever be any good
He's a Rebel `cause
He never ever does what he should..."
"The FIRST thing we do, let's KILL all the TVs"
"...And those that are Fools
Let them use their Talents..."
COMING SOON: naughtius.org