What happened to the 5th? (encryption)

[zahc]

Things have gotten worse faster than I have kept up with. How this is even debatable escapes me. Do they still tell people that they have the right to remain silent, and just cross their fingers behind their back? Also, what does "compel the defendant" actually mean? They waterboard you until you comply?

 The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home...

Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

Prosecutors stressed that they don't actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding "the password to the drive, either orally or in written form."

Read more: http://news.cnet.com/8301-31921_3-20078312-281/doj-we-can-force-you-to-decrypt-that-laptop/#ixzz1RrJ53Hc8

So you have right not to provide data that will incriminate you. You don't have a right not to provide data that will allow the prosecution to obtain data that will incriminate you. Hmm...

[AZRedhawk44]

The hopeful side of me wants SCOTUS to hear this.

The skeptical side of me  wants SCOTUS far away from setting precedent based upon the potentially criminal behavior of someone that attracted police ire in the first place.  More often than not, they side with the Executive Branch.

I was actually just 15 minutes ago, thinking about opening a thread pertaining to Fiber Optic splitting in context of room 641a, and the value of public/private encryption where the server sends a key over wire/light in the first place.  The "sniffer" in 641a intercepts the public key that you get, rendering public/private encryption worthless.

Thus, any "encrypted" files stored on an internet resource based upon a public/private encryption exchange between the file server and your computer, will result in interception of the key as well as the packet data.

However, VPN or other authentication schemes using private/private encryption (such as random number key fobs with passcode tokens) are still immune to intermediary snooping, as far as I can figure.  As long as the vendor of the private/private system hasn't allowed for a software back-door to the algorithm. 

Or, anything encrypted locally to your computer and THEN sent over the wire (clear or otherwise) using a private key, will still be secure (in theory).


I weep for the 5th.   

I'm sure that once the Statists get their pet SCOTUS ruling, if darker days do come in regards to this issue, PGP will be grounds for a no-knock... accessing the digital data while unencrypted because the user is actively using it during the warrant execution.  After all, you NEED a SWAT team to get those dangerous embezzlers and kiddie pr0n traders (as repulsive as that is, it don't need a no-knock).

[CNYCacher]

I was actually just 15 minutes ago, thinking about opening a thread pertaining to Fiber Optic splitting in context of room 641a, and the value of public/private encryption where the server sends a key over wire/light in the first place.  The "sniffer" in 641a intercepts the public key that you get, rendering public/private encryption worthless.

Ummm, it doesn't work how you think it works.  The reason the public key is called such is that it does not matter if the public knows the key.

The entire field of public/private key cryptography assumes that someone is listening in the middle.

[mtnbkr]

I haven't read the article, but if the laptop was in her room and a warrant (big assumption) says they have access to everything in the room, how is the laptop more privileged than a locked box?

Chris

[kgbsquirrel]

I haven't read the article, but if the laptop was in her room and a warrant (big assumption) says they have access to everything in the room, how is the laptop more privileged than a locked box?

Chris

Would you be tolerant of a person being compelled by force to open that locked box if it contained incriminating evidence against them? I wouldn't, I would certainly expect those serving the warrant to have to find a way into said box on their own. It's just that the locked box in this instance is composed of electron charges and is of such technical complexity it is beyond the means of the State's actors to force their way into it where-as the physical locked box you alluded to can easily be breached with the right mechanical tools whether or not the defendant participates in or even agrees to its access.

[seeker_two]

....and what happens if the defendant continues to refuse the password?...... 

[HankB]

....and what happens if the defendant continues to refuse the password?......  

Or what if the password was forgotten . . . or on a thumb drive that SOMEONE WHO SEARCHED THE PREMESIS subsequently lost? Or was written on a Post-It note stuck to the bottom of a desk . . . which was no longer there after the search?

In other words, can the authorities PROVE that the laptop's owner CAN remember the password?

[roo_ster]

Would you be tolerant of a person being compelled by force to open that locked box if it contained incriminating evidence against them? I wouldn't, I would certainly expect those serving the warrant to have to find a way into said box on their own. It's just that the locked box in this instance is composed of electron charges and is of such technical complexity it is beyond the means of the State's actors to force their way into it where-as the physical locked box you alluded to can easily be breached with the right mechanical tools whether or not the defendant participates in or even agrees to its access.

Pretty much my position.  They have it in their hands, let them do the searching without my assistance.  Maybe they also want me to do other aspects of their jobs and tuck them in at night, too?

[birdman]

Ummm, it doesn't work how you think it works.  The reason the public key is called such is that it does not matter if the public knows the key.

The entire field of public/private key cryptography assumes that someone is listening in the middle.

You beat me to it, and are correct.  The whole point is in a public/private key cryptosystem, encryption is easy, decryption (unless you have both keys) is extremely difficult (ie transcomputational if done right).  Now, if you are in the middle, and you receive the public key, generate your own key pair, and send your public key to the intended recipient (eliminating the original message and replacing it with your own) you can decrypt the traffic back, then re-encrypt with the original public key, and no-one is the wiser (based on just the messages)...so p/p crypto isn't totally resistant to man in the middle, just to snooping in the middle.

[RevDisk]

Would you be tolerant of a person being compelled by force to open that locked box if it contained incriminating evidence against them? I wouldn't, I would certainly expect those serving the warrant to have to find a way into said box on their own. It's just that the locked box in this instance is composed of electron charges and is of such technical complexity it is beyond the means of the State's actors to force their way into it where-as the physical locked box you alluded to can easily be breached with the right mechanical tools whether or not the defendant participates in or even agrees to its access.

Uhm.  Yes?   Cops just call a locksmith.   It is not the defendant's fault that she purchased a lock box the police can't open.

Folks, this is why you do crypto right.    TrueCrypt has plausibly definable features for a reason.   Stegnography is also your friend.   

[CNYCacher]

TrueCrypt has plausibly definable features for a reason.

I think The Rev got autocorrected from "plausibly deniable" but he is absolutely right.

Trucrypt allows the creation of hidden and main volumes in the same encrypted system.  Basically, there are two passwords you can give up, and they reveal different content.  There is no way for anyone to prove that more than one password exists on any encrypted system, so you can put embarrassing or private (but not incriminating) content into one password, and the actual stuff you want to hide on the other password.  If compelled to reveal a password, you can reveal the one that is least incriminating.

Of course, that all assumes that someone can prove a Truecrypt volume is actually an encrypted volume.  It's hard to do.

[Jamisjockey]

Regardless....forcing someone to unencrpyt thier software is no different than asking them for the combination to a locked safe, or to sit on the witness stand and incriminate themselves.
The 5th amendment is pretty clear.

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 offense 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 police's job is to gather evidence.  If the laptop is encrypted, let them figure it out.

[birdman]

Regardless....forcing someone to unencrpyt thier software is no different than asking them for the combination to a locked safe, or to sit on the witness stand and incriminate themselves.
The 5th amendment is pretty clear.

The police's job is to gather evidence.  If the laptop is encrypted, let them figure it out.

Agreed.  They can obtain a warrant for the drive, or even a warrant for the encryption key, but your 5th amendment rights protect you from having to supply incriminating evidence, in the same fashion that you can't be forced to open a safe (and then they have to drill it).  In this case, they can't "drill it", so they are looking for a run-around.  Fortunately, it is the individual that has the right to determine if something is incriminating, and thus refuse to submit the information.  (subpoenas are used for third party information). 

I really want this to go to SCOTUS and fast, not only is this slope slippery, it's pretty steep.

[GigaBuist]

I haven't read the article, but if the laptop was in her room and a warrant (big assumption) says they have access to everything in the room, how is the laptop more privileged than a locked box?

In my mind the encrypted volume doesn't contain anything without the presence of the key.

[birdman]

In my mind the encrypted volume doesn't contain anything without the presence of the key.

Also, one of the articles I was reading on this had a good point:
A physical key, a safe, or a paper file can be subpoenaed, however, a passcode is something kept in your head--if you can be compelled to provide the authorities with something that is only known in your own mind, that really makes the fifth amendment moot--how is a passkey any different than your memories of a crime.  The point of the fifth was to prevent self-incrimination by eliminating the possibility of a "tell us or we will imprison you for contempt" deprivation of liberty.  The more I read about this, the more I am really worried just how bad it will be if this is allowed, as it would mean you could be charged with contempt for not providing the authorities with information in your head.  Its not like this is new territory--they can't imprison for contempt killers for not revealing where the body is hidden

[birdman]

One more thing....what if you forgot the passcode? Whether you actually did or not, if this is upheld, the burden of proof would then lie on you to prove you actually did forget something?  Also, what if the encrypted volume had no incriminating evidence?  If this sets precedent, the "prove to us you haven't committed a crime" (or be punished for contempt) situation is now present, which effectively defeats not only the self-incrimination part of the 5th, but also the due process clause, Custodial interrogation clause (since you would be jailed for contempt until providing the information, thus being forced to provide information by way of imprisonment).  Also, since SCOTUS has ruled that silence is speech onto itself I believe, doesn't this also violate the first amendment? (forcing someone to communicate). 

Overall, the only way I can see getting around this is with Use immunity...but since that is right on the edge of allowable precedent, they would still not be able to use any information, or evidence that information led to, against the client...of course, our freedom loving courts would be sure to treat that part carefully...right?

[seeker_two]

One more thing....what if you forgot the passcode? Whether you actually did or not, if this is upheld, the burden of proof would then lie on you to prove you actually did forget something?  Also, what if the encrypted volume had no incriminating evidence?  If this sets precedent, the "prove to us you haven't committed a crime" (or be punished for contempt) situation is now present, which effectively defeats not only the self-incrimination part of the 5th, but also the due process clause, Custodial interrogation clause (since you would be jailed for contempt until providing the information, thus being forced to provide information by way of imprisonment).  Also, since SCOTUS has ruled that silence is speech onto itself I believe, doesn't this also violate the first amendment? (forcing someone to communicate). 

Overall, the only way I can see getting around this is with Use immunity...but since that is right on the edge of allowable precedent, they would still not be able to use any information, or evidence that information led to, against the client...of course, our freedom loving courts would be sure to treat that part carefully...right?

All that would be true.......if we still had a Constitution that was still being enforced..... 

[CNYCacher]

In my mind the encrypted volume doesn't contain anything without the presence of the key.

You are actually completely right and I've never thought about it in this way before, but the fact of the matter is simply that the incriminating evidence does not exist.  Without the key, an encrypted volume is nothing.  It contains no evidence.  if you were too look at the data down to any level there would be no useful information contained there.  The most that you could conceivable construe an encrypted volume to be is merely building blocks.  A road map, if you will, to CREATE the offending information.  For that you need a key.

This case is not analogous AT ALL to being compelled to open a safe.  It's more closely analogous to being compelled to manufacture something illegal so that you can be prosecuted.


It's as if the goonsquad broke into your workshop looking for machineguns, and all they find are metal-working tools and steel stock.  They stick you in the room and say "We know that you have in your head the knowledge to make a machinegun.  Now go out in the shop and make one, or ELSE!

[seeker_two]

This case is not analogous AT ALL to being compelled to open a safe.  It's more closely analogous to being compelled to manufacture something illegal so that you can be prosecuted.


It's as if the goonsquad broke into your workshop looking for machineguns, and all they find are metal-working tools and steel stock.  They stick you in the room and say "We know that you have in your head the knowledge to make a machinegun.  Now go out in the shop and make one, or ELSE!

Because, of course, the Feds would never do that..... 

http://en.wikipedia.org/wiki/Ruby_Ridge

[AZRedhawk44]

You are actually completely right and I've never thought about it in this way before, but the fact of the matter is simply that the incriminating evidence does not exist.  Without the key, an encrypted volume is nothing.  It contains no evidence.  if you were too look at the data down to any level there would be no useful information contained there.  The most that you could conceivable construe an encrypted volume to be is merely building blocks.  A road map, if you will, to CREATE the offending information.  For that you need a key.

This case is not analogous AT ALL to being compelled to open a safe.  It's more closely analogous to being compelled to manufacture something illegal so that you can be prosecuted.


It's as if the goonsquad broke into your workshop looking for machineguns, and all they find are metal-working tools and steel stock.  They stick you in the room and say "We know that you have in your head the knowledge to make a machinegun.  Now go out in the shop and make one, or ELSE!

That's one hell of a defense.

I like it.

Have you considered submitting the idea to the EFF?

[RevDisk]

I think The Rev got autocorrected from "plausibly deniable" but he is absolutely right.

Trucrypt allows the creation of hidden and main volumes in the same encrypted system.  Basically, there are two passwords you can give up, and they reveal different content.  There is no way for anyone to prove that more than one password exists on any encrypted system, so you can put embarrassing or private (but not incriminating) content into one password, and the actual stuff you want to hide on the other password.  If compelled to reveal a password, you can reveal the one that is least incriminating.

Of course, that all assumes that someone can prove a Truecrypt volume is actually an encrypted volume.  It's hard to do.

Ah, yes, I did.  Friggin phone.

While it is true that you cannot mathematically prove a TC container is encrypted data instead of a dump from a pseudo random number generator, it is possible to reasonably and accurately suspect a file is a TC container.  File size mod 512 = zero, file size >= 19 KB, passes a chi-square distribution test (ie uncommonly random), no common file headers.  There's an app called TCHunt for doing those checks.

Again, a truely paranoid individual could include a number of RNG dumps on their systems.   /dev/random is fine, but I really do recommend a quantum RNG using a single photon detector and a laser.  The US government had an interesting exhibit at Defcon with a working implementation that was quite nice, and easily scalable.  

Quantum RNG



Data visualization, rand() vs Quantum RNG





A decade ago, I'd sound like a paranoid nut.  Nowadays, I probably sound like someone who is a bit overly serious, but not completely insane.  I wonder what the same advice will sound like in another ten years.  "Illegal" or "Bloody well necessary" is my best guess.  

That's one hell of a defense.

I like it.

Have you considered submitting the idea to the EFF?

It's been tried.  Judges simply toss folks into jail on contempt until they crack.  Most folks don't have enough of a rainy day fund to be able to afford months in prison as their family losses everything they own.  

[CNYCacher]

It's been tried.  Judges simply toss folks into jail on contempt until they crack.  Most folks don't have enough of a rainy day fund to be able to afford months in prison as their family losses everything they own.  

What has been tried?  My "Compelling someone to type in the key is tantamount to compelling someone to manufacture evidence (not merely reveal evidence)" argument?  Or "Nyah Nyah, you can't prove I have an encrypted volume!" strategy?

[RevDisk]

What has been tried?  My "Compelling someone to type in the key is tantamount to compelling someone to manufacture evidence (not merely reveal evidence)" argument?  Or "Nyah Nyah, you can't prove I have an encrypted volume!" strategy?

Neither really.  Folks easily guess (actually, pretty much know) there's an encrypted container.  Folks don't tend to clean up after themselves and leave plenty of evidence proving the container contains valid data.  And the prosecutors know there is a valid key.  So they ask for the key, and the judge throws them in jail if they refuse to provide said key.  AFAIK, any arguments that it's an express violation of the 5th or variations of your argument have had mixed but mostly inefficient results.  Folks eventually roll and hope they can get it suppressed on appeal. 

Again, hard to fight for your rights when your family is losing everything.  The deck is extremely stacked in favor of the prosecution and government. 

[GigaBuist]

This case is not analogous AT ALL to being compelled to open a safe.  It's more closely analogous to being compelled to manufacture something illegal so that you can be prosecuted.

Another way to think of it would be being forced to assemble and very shredded document.  Nobody else in the world has any idea what that shredded document looks like and you're the only one that can put the evidence back together for the government.

That would be my preferred analogy.

[freakazoid]

That's what makes having an encrypted volume within an encrypted volume nice. You just "hide" something that isn't actually illegal but either personal, like bank information, or controversial, like pdfs of how to make full-autos or just loads of porn, perhaps even gay porn, not for your actual viewing but to make it look like something you wouldn't want other people to see. You put that on the first part that is encrypted and then put the stuff you actually want to hide on the second part.