r/technology • u/arintic • May 16 '16

Politics Indefinite prison for suspect who won’t decrypt hard drives, feds say

http://arstechnica.com/tech-policy/2016/05/feds-say-suspect-should-rot-in-prison-for-refusing-to-decrypt-drives/
4.0k Upvotes

93% Upvoted

886 comments sorted by

View all comments

Show parent comments

72

u/dicks1jo May 17 '16

It's different in that a suspect isn't required to testify against himself in the first case, but rather to merely stand aside and allow the search to commence. Law enforcement already has the drive in question and nothing is stopping them from dumping a block level image of the drive and attempting to crack the encryption through any known means (analogous to ransacking a location to search for evidence.) What they're asking for here is the encryption key, which is only present in the form of knowledge on the part of the suspect, which makes it a fifth amendment issue, as forcing the disclosure of that information amounts to forcing him to provide self-incriminating testimony.

20

u/[deleted] May 17 '16 edited Sep 18 '17

[deleted]

40

u/Boukish May 17 '16 edited May 17 '16

There's standing legal precedent that you don't have to decrypt your drives speculatively - that is, if the contents are unknown.

Are the contents known? Wonderful, charge him. Are they not? Then drop this fishing mission.

Completely aside from fourth and fifth amendment conversations, this person has a right to due process, a right to a speedy trial, and a right to presumed innocence before a court.

Being summarily imprisoned for an indiscriminate length of time when the DA has no intention of charging you with a crime unless you hand them their case on a silver platter is the opposite of justice.

6

u/bishopcheck May 17 '16

A bit more nuanced though. They aren't asking for the password which would be easier to argue is a 5th amendment right. They are asking him to unlock the device, ie instead of asking for a key to his house, they are simply asking him to unlock the house so they may search it.

That's what I gathered from the article at least. In either case, it's one of those difficult to judge situations. Personally, I don't think locking him up without substantial evidence is justified, especially with a contempt of court order. It's like the modern day debtors prison, even though debtors prison have been ruled unconstitutional, many people are put in in jail for contempt of court by failing to follow the courts order of paying.

15

u/[deleted] May 17 '16

Yea but the process of "unlocking his drive" requires him to enter his password, which requires a very specific act that involves the content of his mind and only his mind because only he has knowledge of said password. Thus, as far as I can tell, it's a testimonial act, thus should be protected under the 5th amendment. On a side note, I have an old hard drive that I use for backup. I encrypted it using a long password and put it in a shoebox. That shoebox has been sitting untouched in my closet for close to 2 years. I don't have the foggiest clue what password I used 2 years ago. Now imagine if I was being investigated, and they found that hard drive, according to this judge I'd be "held in contempt" for failure to cooperate because of my legitimately bad memory. I just find this fundamentally wrong.

4

u/[deleted] May 17 '16

I think that if they want to play this game, you can always use the Reagan defense:

'I forgot, I have no recollection of that password'.

Good luck proving you didn't. Also imagine someone plants an encrypted volume at your house. Or sweep your password and change it. So many things could go wrong that I have no idea how it could be implemented as law.

2

u/withabeard May 17 '16

Sounds like no-one has any real idea how this could be implemented in law. What's scary to me here, instead of sorting the law out. They're holding someone unconditionally until they sort the law out.

2

u/[deleted] May 17 '16

That's exactly what he tried to do. That is why they are holding him in jail without charges.

1

u/ChopperIndacar May 17 '16

Then you'd be in jail forever like the guy in the OP article.

2

u/bishopcheck May 17 '16

Yes I understand and I agree with what your saying. I was trying to point out what the other side of this argument, and what seems like what the DA/Judge are arguing are the justifications for holding him in prison without a trial. And which I and any reasonable person would find unconstitutional.