Decrypt your drives or go to jail indefinitely!

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posted on Jun, 4 2013 @ 06:48 PM
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Such has been the order against one Jeffery Feldman. Jeffery, a computer and file sharing user from Wisconsin was picked up recently on suspicion of Child Pornography downloaded from E-Donkey. (Thats a new one..but I presume some have heard of it).

The police came, they saw and they took everything the Search Warrant properly indicated they could take. No problem so far. When they got all the evidence back to look at, the problem became apparent. Jeffery thought of that, it would seem. A portion of his drives are encrypted and the police can't or won't crack the encryption.


If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?

That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues of the wired era.”


The Gitmo treatment for simply refusing to decrypt files and effectively self incriminate? Interesting one there. As it happens, an update to the story today shows the Judge has reconsidered....temporarily, while he considers the full constitutional issues involved here. (Good move, Judge)


The magistrate in the case stepped aside Monday after Shellow argued that only U.S. district court judges, not magistrates, have the legal power to issue decryption orders. As of now, the new judge in the case has not decided whether to uphold the magistrate’s order.

U.S. Magistrate William Callahan Jr. initially said the Fifth Amendment right against compelled self-incrimination protected Feldman from having to unlock his drives.

But last month, prosecutors convinced Callahan to change his mind. Among other reasons, the authorities were able, on their own, to decrypt one drive from Feldman’s “storage system” and discovered more than 700,000 files, some of “which constitute child pornography,” the magistrate said.
Source

Why oh why is it the most critical cases of Constitutional Law seem to involve the absolute least sympathetic defendants and cases? It's hard to even suggest something which may benefit a kiddie porn user. Just as I'm sure it was awfully hard to find in favor of the Klu Klux Klan for their right to parade down Main St. in Skokie, Illinois after the town vehemently opposed and then took the whole thing to court.

Alas, the subject isn't as important as the principle, IMO. What is the opinion here? Should the right to hold to the 5th Amendment against self-incrimination hold to not releasing passwords for the decryption of your own files? Should it matter or should it be assumed that a refusal is indicating the presence of something to hide or fear? This issue has been argued before on standing the 5th for verbal testimony and other forms. In verbal statements, the 5th is almost absolute in terms of not being forced to give evidence against one's own interests.

In this case, it would appear to be the argument that because it's electronic and not verbal, it doesn't warrant the same protections?

So really, we have two issues here. Should the 5th Amendment apply? If it doesn't apply and someone still refuses....should they be locked up without trial or due process for what amounts to indefinite detention?

edit on 4-6-2013 by Wrabbit2000 because: (no reason given)




posted on Jun, 4 2013 @ 06:56 PM
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reply to post by Wrabbit2000
 


Great find. This does seem like a very important constitutional issue, and will, if not resolved, probably make it to the U.S. Supreme Court. I can't see how any constitutionally minded person can even try to force the issue - if he doesn't want to self-incriminate then how can anyone make him? So the legal facedown here puts the rights of the individual front and center (as I'm sure many of his hidden photographs put some incriminating things front and center). Hopefully groups like the ACLU will get involved in this one.

EDIT: 700,000 files! This guy has the collecting bug, among other bugs.

edit on 4-6-2013 by Aleister because: (no reason given)



posted on Jun, 4 2013 @ 06:59 PM
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If they had a search warrant for pictures, say, and came across a locked file cabinet...could they open the file cabinet under the assumption that the pics might be there?

Seems to me this would fall under the same category. If the police are looking for child porn, and if this person downloaded said porn...chances are high he encrypted it. I don't think this should give him protection, nor do I think the fifth amendment should apply. I also think, if he refuses to decrypt, that the police have the right (under the search warrant) to decrypt it for him.

I'll admit, Wrabbitt, I'm not well versed in constitutional law or police procedures. Maybe the police need a new search warrant that includes the encrypted files, to be safe.



posted on Jun, 4 2013 @ 07:00 PM
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Saw this in the news... tough call. I hate the child porn pervert but I love the freedoms defined by our laws (the implementation of which is debatable),

I'd have to side with the 5th Amendment. If he's guilty, prosecutors please find something else (anything) other than forcing him to decrypt his drives and self-incriminate.

What a screwed-up world we live in.



posted on Jun, 4 2013 @ 07:02 PM
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reply to post by smyleegrl
 


Of course the police have a right to try to get into the files, but asking him to open them for them and, when he refuses, continuing to pressure him, shows their disregard for U.S. constitutional protections.



posted on Jun, 4 2013 @ 07:02 PM
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reply to post by Aleister
 

Indeed, this has far reaching implications. I'm thinking of what we all do here at ATS. It's true for most but particularly some of the major and regular contributors. I'd imagine we all have some rather extensive archives of stories and material. Personally, I have thousands of PDF's and gigs of data/files. Now I don't believe any of that is illegal for me to have in terms of classification levels (I don't have any like that) or distribution restrictions (err.. uhh.. Yeah.. none of that here either.
)

So if we drop the kiddie porn example this guy stands with for the test case here and fill in Wikileaks or Cryptome type data instead? Hmmm... How about one of us knowing a friend or relative with true inside whistle blower stuff on a major company or agency? Now it gets more immediate and relevant.

I'm thinking something like this may properly need to get to the Supreme Court for a meaningful decision. The more I give thought to it, the more it strikes me as TOO far reaching an issue to leave with the patchwork of decisions common to the Appellate level of the court system.



posted on Jun, 4 2013 @ 07:03 PM
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Originally posted by InTheFlesh1980
Saw this in the news... tough call. I hate the child porn pervert but I love the freedoms defined by our laws (the implementation of which is debatable),

I'd have to side with the 5th Amendment. If he's guilty, prosecutors please find something else (anything) other than forcing him to decrypt his drives and self-incriminate.

What a screwed-up world we live in.


Indeed.

What if the only evidence lies in these encrypted files? Maybe I'm missing something, but why can't a search warrant include encrypted files?



posted on Jun, 4 2013 @ 07:05 PM
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They should just crack them themselves.

I don't understand the law well enough to say if it's an infringement on his rights,I guess computers weren't considered at the time..lol

Indefinite detention with no trial that is just wrong (scum bag should be strung up) and violates his rights.



posted on Jun, 4 2013 @ 07:06 PM
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Originally posted by Aleister
reply to post by smyleegrl
 


Of course the police have a right to try to get into the files, but asking him to open them for them and, when he refuses, continuing to pressure him, shows their disregard for U.S. constitutional protections.


This is what I don't understand. I get the self incrimination, but why not modify the warrant to include the encrypted files? It seems this is overly complicated (or I'm truly undereducated in this area, and that could readily be the case).



posted on Jun, 4 2013 @ 07:06 PM
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reply to post by smyleegrl
 


I think the issue isn't that the police need permission to unencrypt the file but rather that i would take an inordinate amount of time and resources for them to be able to decrypt it at all.
So rather than a filing cabinet imagine an impenetrable safe with a 3000000000 number combination lock and you will be sent to jail if you refuse to tell the police the combination

A similar thing has already happened in the UK linky


A teenage takeaway worker has been jailed for four months for refusing to give child protection police the password to his computer.

Oliver Drage was originally arrested in May last year by a team of officers from Blackpool tackling child sexual exploitation.

The 19-year-old's computer was seized but officers could not access material stored on it as it was protected by a sophisticated 50-character encryption password.



posted on Jun, 4 2013 @ 07:08 PM
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reply to post by smyleegrl
 


Well, the problem is a simple one. I think it's the image we're left with from Police and Government in general that makes it difficult to see because it's literally too simple to be true. Yet, there it is for all to see.

Encryption, depending on type and method, works. They can get warrants till the cows come home and if the guy won't willingly hand over the encryption key? No dice...nothing is opening. I believe that all changes at the high federal levels of Intelligence and Military? Then again, maybe not. Assange is still safe from his Encryption used on the Wikileaks insurance file which millions of people have on their computers. (Not I..of course. That wouldn't be legal) No one, to my knowledge, has cracked that nut and I am sure many people from amateur to master have and are working to do it.

So, it really does come down to the base issue of...can you put someone in a prison cell until they are forced to give you what you need to obtain the evidence to convict that same person?



posted on Jun, 4 2013 @ 07:08 PM
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I don't get it. If they already found some illegal things on his other drive, why don't they just charge him on what they found rather than drag it out? Hmm, because prosecutors always want the hardest penalties possible. Doesn't matter they have enough now to lock him up for 20 years, they need to violate the constitution and risk their case in order to push for life in prison for him.



posted on Jun, 4 2013 @ 07:11 PM
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I think I'd have to pull an Oliver North and say that I simply "have no clear recollection" of my encryption password. Can they prosecute you for having a bad memory?



posted on Jun, 4 2013 @ 07:11 PM
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reply to post by davespanners
 


Thanks, Davespanners.

Do the authorities truly not have the software to crack such a code? I would think the military could do it, but perhaps not.

After rereading the OP, there is something that bothers me....holding this guy in prison until he complies. That's a HUGE red flag to me.

This is a complicated case, and I don't have the understanding of the law to make a judgement call. I therefore bow out of the conversation and will be content to let you all enlighten me.
edit on 4-6-2013 by smyleegrl because: STUPID AUTOCORRECT!!!



posted on Jun, 4 2013 @ 07:12 PM
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Originally posted by smyleegrl
Indeed.

What if the only evidence lies in these encrypted files? Maybe I'm missing something, but why can't a search warrant include encrypted files?


Because it requires the accused to take action that could legally incriminate him of a crime. The 5th Amendment prevents people from taking such action via testimony or other actions.

I agree, this is a gray area not fully foreseen (how could it be?), but the same principles apply nonetheless.

Don't get me wrong, if he's guilty I'd just as soon they hang him high, but it's a slippery slope and protection of liberty is paramount in this day and age. They need to nab him on internet traffic records instead of the content of encrypted drives that only he can unlock.

...or the FBI needs to recruit smarter folks than the computer monkey-bunglers they currently have.



posted on Jun, 4 2013 @ 07:12 PM
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reply to post by Wrabbit2000
 


If I had stolen jewels and had them hid in a safe, and the cops had a warrant to search my premises but couldn't get into the safe unless I gave them the combination, is that in violation of the 5th?

I doubt it. Though, like miss Smiley, I am unsure.



posted on Jun, 4 2013 @ 07:12 PM
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I think that if the guy has nothing to hide then he should comply with the courts request, especially if it could prove his innocents to the charges he is facing. His failure to do so kind of makes him look guilty, just sayin'.



posted on Jun, 4 2013 @ 07:13 PM
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The only way to make him open the files is to give him immunity concerning the contents, which would be self-defeating in one way but would give law enforcement hundreds of thousands of leads on child-porn photographers, the children themselves, and possibly distributors. That's the direction I'd take the case if he refuses, especially if they already have enough evidence on him. Then again, if he still refuses, can they jail him for refusing?



posted on Jun, 4 2013 @ 07:14 PM
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I am not a fan of people who think it's OK to bend and twist the Constitution in all directions just so criminals can stay one step ahead of the law.

If the guy is innocent he'll be happy to decrypt those files and prove it. At this point his refusal to decrypt them is an act of self-incrimination.



posted on Jun, 4 2013 @ 07:16 PM
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reply to post by Wrabbit2000
 


This one will go straight to the top. On one hand, we have the State claiming that they were able to "decrypt" partially a portion of his HDDs (hard disk drives for those non-geek types) and have found "what appear to be" incriminating evidence.

To me, they should go on that, why do you need more; unless...you are trying to set precedents by "forcing" him to incriminate himself on more evidence.

It is a straight 5th Amendment case through and through concerning me. I saw someone try to analogize this to someone who has a safe. It fails the test because even if the police have a warrant, they cannot force you to build the case for the State. That is the crux of the 5th Amendment. You are innocent and it is up to the State to show otherwise.

So in this case, the State can seize his HDDs and even try and decrypt them, but he is in no way, compelled to build the case for the State; warrant, judge's order or act of Congress short of amending the 5th Amendment.





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