When the FBI used the All Writs Act against Apple to attempt to force Apple to bypass the password functions of an iPhone or develop a backdoor method of access, the courts ruled that decryption was not a violation of the Fifth Amendment "if the contents were a foregone conclusion."
So if "foregone conclusion" is the criteria that must be met, I have to ask how the contents of this man's external hard drive could be conclusively a foregone conclusion. Maybe he did download thousands of images. What if he no longer possess them? He could have deleted them. The police have been known to make mistakes and have made high profile mistakes' i.e., the Atlanta Olympics bombing when they all but destroyed Richard Jewell.
What if he decrypted it and there was no child porn but there were records of say a store selling drugs etc on the dark net? Then he would have incriminated himself for something they had zero knowledge about because the court issued this writ.
The government states that his sister acknowledges him showing her many explicit photos. Did she turn in her brother? Why would a man show his sister pornographic images? Did she tell anyone around the time this happened that this occurred? Seems to me to be unusual at the least for the government to hang their hat on something uncorroberated. If the sister had access to the computer' who is to say that she did not download the images. He could have seen them and deleted them. Seems that a mere he said -she said is enough to have the government invade your privacy and demand you willingly set aside your consistutional protections or risk going to jail when you have not been charged with, let alone convicted of, a crime.
We have to be very careful when we start seeing civil liberties and constitutional protections erode. Tech companies have been under siege from the government's use of the All Writs Act in the last two decades and as long as they are successful, I do not foresee them changing their methods.
The "forgone conclusion" argument makes no sense to me. If there's enough evidence that the conclusion is "forgone", what is there to gain by decrypting the contents?
The forgone conclusion is that evidence likely exists on the drives and as such the judge issued the Writ pursuant to the All Writs Act. But to prosecute someone in a court of law it takes evidence, admissible evidence, and conclusions that it likely sits on an external hard drive is not in and of itself evidence of pornographic images of children.
Or maybe he is a firm believer that there is no faster way to erode our constitutional protections than to voluntarily surrender them.
Or maybe he believes that damn pesky constitution (sarcasm) applies to everyone including the government when it comes to search and seizure, and to himself when it comes to right to due process of law, and the protection against self incrimination to name just a few.
Or maybe there is child pornography on there and he does not want to charged and tried and vilified in the court of public opinion. Right now he can stand on "higher ground" by making a constitutional law argument than exposing a secret that he may be ashamed of (guessing here).
Or maybe he truly does not know the password? Despite the governments best efforts they have not been able to crack it so it must be quite secure/complicated.
Maybe. But let's be honest here: there's CP on that drive. This is a good case for spinning around on HN arguing about the extent of the bill of rights protections in the face of creative application of the All Writs Act. It's a terrible one for actually defending the perp. I mean, come on.
> Maybe. But let's be honest here: there's CP on that drive. This is a good case for spinning around on HN arguing about the extent of the bill of rights protections in the face of creative application of the All Writs Act. It's a terrible one for actually defending the perp. I mean, come on.
The thing with the law and rights is, is that they are the same for everyone. Eroding them for this guy also erodes them for you.
Don't you think its wrong to be able to hold someone forever without evidence? Isn't one of your rights that you don't have to incriminate yourself?
Or do you think that some people should have less or more rights than yourself?
>It's a terrible one for actually defending the perp. I mean, come on.
Who is defending him? I cannot in good conscience call him a perp as he has not been charged with, let alone convicted of, a crime. I am only pointing out that there are a myriad of possibilities one of which is that there is child pornography on the drive. However, we do not know that for a fact.
But just as I said, he may fear decrypting the drive because of what is on it (only he knows at this point). He may think it is better to be seen as the little guy being bullied by big brother than to be vilified by those who will presume him guilty of having "CP on that drive" and becoming "the perp" without due process.
Forgive me if I am incorrect but don't our laws apply equally regardless of the crime one is suspected of commiting?
> Forgive me if I am incorrect but don't our laws apply equally regardless of the crime one is suspected of commiting?
The All Writs Act is a law, and it allows exactly what is happening here. The question at hand is about whether that is in conflict with the fourth and fifth amendments. Equal protection is an entirely different thing and not at issue here.
And again, if you want to talk about the constitution I'm all for it. But just don't do that in the context of "you know, maybe this guy is innocent". That's silly and counterproductive.
The practical thing happening here is that the prosecution almost certainly could build a case on the evidence they have, but in practice they don't have to because the judge is willing to hold the guy in jail on procedural grounds.
Again, I'm saying there is a good argument that this was a bad decision and that the All Writs Act shouldn't be construed to allow this. But that's an academic point. In the real world, chances are very near zero that there is any "injustice" going on in this particular case.
Not a "game", maybe, but it's still zero sum. Which prosecution specifically do you want to skip so that the system can go through the motions to "do its freaking job" and get a conviction?
Once more: this was a practical decision by prosecutors to deliver as much justice as they could given limited resources. It seems all but certain (yes, in the "beyond a reasonable doubt" sense) that there is no objective injustice involved in holding this guy.
I don't think many people on this thread would have a problem with the case if the guy had gone in trial for possessing child pornography and had been convicted.
That's exactly what I believe: there are files there that will incriminate him in committing those acts himself. I find it hard to argue he should be left alone, but I suppose that's just a gut reaction?
The logic of innocent until proven guilty philosophy, is that it's better for a guilty person to go free than for an innocent person to be jailed. Hence the burden on proving guilt beyond a reasonable doubt.
Probability isn't sufficient, in this philosophy, because it's a trap. Of course probably he has on these drives what prosecutors claim, or worse, evidence of his direct involvement. And the trap is the injection of lack of sympathy into the decision making process; of course any reasonable person will say, eww he's almost certainly a creep therefore I'm not sympathetic to his indefinite incarceration. But that's exactly what the philosophy was supposedly designed to avoid, any possibility that innocent people get jailed; not preventing guilty people going free.
This is why you see a lot of effort by prosecutors defending against introduction of new evidence to prove innocence; because proving innocence well after a guilty verdict, itself shows the possibility of jailing innocents. It taints the system. And then you get these ever more perverse notions that executing those who later prove themselves innocent is not an unconstitutional execution when that person had received a free and fair trial finding them guilty of a capital crime.
http://www.businessinsider.com/antonin-scalia-says-executing...
While this may be true, the government has asked the court to order him to decrypt it as they search for those images. If they are after a bigger network of people sharing these images, then they should say so and grant him immunity or work out some type of deal with him.
As I said earlier I am not taking a position on whether what he did was right or wrong or on the moral aspects of the subject matter but here in the US the government must have a warrant to search electronic devices and that warrant must name the material they are seeking. If they list images related to child pornography, child molestation, etc they cannot go looking for evidence of drug dealing per se. But let's assume they find evidence of drug dealing, do you not think they will simply broaden the scope of their investigation and go looking in every corner of s life to now prove something they previously were unaware of before they hypothetically gain access to the drive.
Or maybe he is trying to stand his ground and preserve his right to privacy or as I said previously, maybe there is some totally unrelated crime that unlocking the external hard drive would expose.
Not quite. Investigators said they had found he had downloaded thousands of files whose hash values matched known child pornography [1]. The files were not found on his computer so they wanted to decrypt his external drive to see if they were there...
Which makes more sense to me...I believe it is unlikely that hash values would remain intact through encryption.
Wow, that link is really damning. As the passwords he willingly did give up showed CP content on his iphone, I'm unwilling to give him the benefit of the doubt on the drives.
That said, it's entirely possible still he forgot the passwords to the drives.
But that does not mean he downloaded them if someone else has access to his computer nor does that mean they are still there.
I read the article to mean that the police have proof that hashes of known child pornography were downloaded and are not on the computer so they are assuming that they were downloaded to the external hard drive. How can they see what files are sitting on a password protected encrypted drive? Who is to say that it is this external hard drive these files were download onto?
I just believe that more is needed to meet the "foregone conclusion" threshold.
Specifically the top paragraph on page 7. If you can get through that paragraph and still give him the benefit of the doubt, then you are more open minded than I am.
Who is giving him benefit of the doubt? I have repeatedly said there may be child pornography on the drive or evidence of other crimes. I am simply saying there are a number of reasons he is unable or unwilling to do as he has been ordered by the Writ.
Then the police need to work with the prosecutor and the prosecutor needs to bring charges and get a trial underway.
Prisons are overcrowded enough and it costs a pretty penny to house prisoners without us starting to house people indefinitely who have not been charged with a crime.
How does that happen? Technically I mean? This isn't full disk encryption? What terrible software leaked the hashes of what it was encrypting? This seems highly relevant to the discussion.
They know he downloaded files which have the same hash values as known images of child sexual abuse.
They arrest him and search him. They can't find these images but they find an encrypted hard drive.
In some countries (England) they can ask for the keys, and not handing over the keys is its own offence (with 2 or 5 year sentence depending on the supposed contents).
I have no idea what the legal situation is in any other countries.
The US has a provision on the bill of rights of its constitution saying, loosely, that you can never be compelled / coerced into being a witness against yourself. E.g. "Admit you did this crime or we send you to jail for life." Keep in mind that the bill of rights was written by rebelling colonials who were explicitly countering what they saw as abuses in the English system of law--in your example the ability of a judge to charge you with essentially the "crime" of not helping the prosecution's case. The crux of this case is over whether revealing a password to unlock a drive is the same as admitting to guilt -- which the court cannot compel you to do. There are arguments for both sides, honestly.
I see. I think this is my understanding of where the hashes come in -- law enforcement doesn't keep child porn around for comparison. That would be asking for abuse. They instead keep a list of cryptographic hashes of identified child porn files, and they want to see if this hard drive, once decrypted, has any files that match those hashes.
Seems easily defeated by a technical adversary, but probably good enough for most police work.
So if "foregone conclusion" is the criteria that must be met, I have to ask how the contents of this man's external hard drive could be conclusively a foregone conclusion. Maybe he did download thousands of images. What if he no longer possess them? He could have deleted them. The police have been known to make mistakes and have made high profile mistakes' i.e., the Atlanta Olympics bombing when they all but destroyed Richard Jewell.
What if he decrypted it and there was no child porn but there were records of say a store selling drugs etc on the dark net? Then he would have incriminated himself for something they had zero knowledge about because the court issued this writ.
The government states that his sister acknowledges him showing her many explicit photos. Did she turn in her brother? Why would a man show his sister pornographic images? Did she tell anyone around the time this happened that this occurred? Seems to me to be unusual at the least for the government to hang their hat on something uncorroberated. If the sister had access to the computer' who is to say that she did not download the images. He could have seen them and deleted them. Seems that a mere he said -she said is enough to have the government invade your privacy and demand you willingly set aside your consistutional protections or risk going to jail when you have not been charged with, let alone convicted of, a crime.
We have to be very careful when we start seeing civil liberties and constitutional protections erode. Tech companies have been under siege from the government's use of the All Writs Act in the last two decades and as long as they are successful, I do not foresee them changing their methods.