<story><title>Man jailed indefinitely for refusing to decrypt hard drives loses appeal</title><url>https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/</url></story><parent_chain><item><author>jaredklewis</author><text>Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts.&lt;p&gt;For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist and that you know about the documents.&lt;p&gt;So if you&amp;#x27;re asked for the documents and the prosecution has no evidence that the documents exist or that you know about them, the 5th will cover you.&lt;p&gt;However if during a police interrogation you admit that the documents exist, when they are subpoenaed, you can&amp;#x27;t withhold evidence.&lt;p&gt;I imagine that the 5th will work much the same with passwords. If it is known that you have the ability to unlock the device, refusing to do so will be withholding evidence.&lt;p&gt;However if revealing the password implicitly reveals the hitherto unknown information that you know the password, 5th will work.</text></item><item><author>smsm42</author><text>This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking &amp;quot;well, those Founders were just idiots for putting such an amendment in, clearly it&amp;#x27;d be much easier to prosecute people if we could compel them to witness against themselves, so why don&amp;#x27;t we just ignore it and put people in jail indefinitely until they agree to witness against themselves?&amp;quot;. Terrifying that it is so easy for them to completely ignore all constitutional protections.</text></item></parent_chain><comment><author>Sir_Substance</author><text>So here&amp;#x27;s my concern: guy&amp;#x27;s now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it&amp;#x27;s not foregone enough that they&amp;#x27;re willing to go ahead and prosecute without the contents of his hard drive. They&amp;#x27;re gonna hold off until they get what they need.&lt;p&gt;We&amp;#x27;re starting to get to the edge of the point where this guy might legitimately forget his password. I think we can assume the FBI has been running a common passwords&amp;#x2F;dictionary attack with common password symbol substitutions for the last 18 months, and apparently they haven&amp;#x27;t found the answer, so this password is probably a pretty good one that&amp;#x27;s not based on a word or even a sentence.&lt;p&gt;If he stays in jail without trial for another two years and then says &amp;quot;I can&amp;#x27;t remember my password any more&amp;quot;, what should we do?</text></comment>
<story><title>Man jailed indefinitely for refusing to decrypt hard drives loses appeal</title><url>https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/</url></story><parent_chain><item><author>jaredklewis</author><text>Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts.&lt;p&gt;For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist and that you know about the documents.&lt;p&gt;So if you&amp;#x27;re asked for the documents and the prosecution has no evidence that the documents exist or that you know about them, the 5th will cover you.&lt;p&gt;However if during a police interrogation you admit that the documents exist, when they are subpoenaed, you can&amp;#x27;t withhold evidence.&lt;p&gt;I imagine that the 5th will work much the same with passwords. If it is known that you have the ability to unlock the device, refusing to do so will be withholding evidence.&lt;p&gt;However if revealing the password implicitly reveals the hitherto unknown information that you know the password, 5th will work.</text></item><item><author>smsm42</author><text>This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking &amp;quot;well, those Founders were just idiots for putting such an amendment in, clearly it&amp;#x27;d be much easier to prosecute people if we could compel them to witness against themselves, so why don&amp;#x27;t we just ignore it and put people in jail indefinitely until they agree to witness against themselves?&amp;quot;. Terrifying that it is so easy for them to completely ignore all constitutional protections.</text></item></parent_chain><comment><author>mickronome</author><text>There are, as far as I can tell some weaknesses in that argument, at least from a lay perspective.&lt;p&gt;- There must be evidence that I can unlock the device for the two situations to be equivalent, and the request must be for specific documents known to exist. If they don&amp;#x27;t exist all evidence found must be invalidated because the cause for the search was invalid.&lt;p&gt;- If evidence of ability to unlock the device does not exists, but the assumption is that since it&amp;#x27;s mine I can unlock it, I think the analogy is slightly flawed. Since the ask is now not about producing a specific thing I&amp;#x27;m known to possess, I&amp;#x27;m indirectly being asked to produce a document (password), albeit not in material form but typed on a keyboard. Since it&amp;#x27;s never been proved that I actually am able to open it, the situation is not equivalent, but more like there being a safe in my house that nobody has seen me open, no key is know to exist, but since I own the house I am assumed to be able to open it, and I&amp;#x27;m held in contempt because I say I can&amp;#x27;t or won&amp;#x27;t open it. It&amp;#x27;s not too uncommon for a house to contain a safe the current owner can&amp;#x27;t open, but it does not lead to the same situation since it can usually be forced open. The only difference with good encryption is that the option to use force has become increasingly impotent.&lt;p&gt;- Unlocking a computer without proper limits and auditing of the search is also more like being asked to give access to any document storage rooms I own or have access to. Reason being that unlocking a device will in many cases give access to more than the bare contents of the drive, giving access to emails, Dropbox, and other logged on applications and sessions. Since parallel construction appear to be a thing, it&amp;#x27;s ripe for abuse.&lt;p&gt;Maybe there needs to be a process where independent auditors can, under surveillance of the defendants lawyer produce named documents from seized evidence, as giving police and&amp;#x2F;or prosecutors blanket access to devices entire content could create lots of opportunities to create parallel construction stories for any content found not under the current warrant, and as bizarre parallel construction is, it appears to have been used.</text></comment>