Judge orders woman to give up password to hard drive

[JohnnyMack]

http://technolog.msnbc.msn.com/_news/2012/01/23/10219384-judge-orders-woman-to-give-up-password-to-hard-drive

What say you, amateur legal geniuses of the SO? Does this violate the 5th amendment?

[OUDoc]

Is this different than enforcing a search warrant against your will?

[rekamrettuB]

Hell if she doesn't give it to them I'm sure they have folks that can hack it. Probably just trying to save some money. If the laptop was seized as part of the investigation then she needs to give it up. Otherwise the judge will probably see her as not cooperating.

I am no lawyer. Somebody grade my response. I'm sure I'm way off. Common sense rarely is correct.

[olevetonahill]

She has the right to remain silent, IMHO . **** em

[Viking Kitten]

I can see the Fifth Amendment argument. Seize the computer and hack away, but don't expect her to incriminate herself.

[olevetonahill]

I can see the Fifth Amendment argument. Seize the computer and hack away, but don't expect her to incriminate herself.
What SHE said

[Breadburner]

**** the crooked bitch.....

[yermom]

Gotta love the EFF

It's not trivial to break encryption like that

Personally, I'd be afraid of forgetting my password...

[Midtowner]

I don't agree with the Judge at all. I know that if I was a prosecutor, I'd argue that there could not possibly be anything incriminating about the actual password, therefore, her 5th Amendment rights were irrelevant. That said, I think that is a pretty dangerous line of thinking. It'd be just like holding someone in contempt for not telling the police where the murder weapon was. Hopefully, this Judge is overturned. I really disagree with that line of thinking.

[olevetonahill]

I don't agree with the Judge at all. I know that if I was a prosecutor, I'd argue that there could not possibly be anything incriminating about the actual password, therefore, her 5th Amendment rights were irrelevant. That said, I think that is a pretty dangerous line of thinking. It'd be just like holding someone in contempt for not telling the police where the murder weapon was. Hopefully, this Judge is overturned. I really disagree with that line of thinking.
Well hell, WE can agree on some things :very_drunk:

[dwarthog]

Gotta love the EFF

It's not trivial to break encryption like that

Personally, I'd be afraid of forgetting my password...

I hate that when it happens....

[Midtowner]

It's pretty scary what's happening to our civil liberties. This particular case isn't all that bad as this is just a lone wolf federal judge who has made a pretty disturbing decision. It doesn't set precedent, so outside of this individual case, where the turd probably deserves to at least be made to sweat, it's not a big *** deal (yet). The problem is that this isn't just a single decision floating out there on an island. Our 4th and 5th Amendment rights are basically experiencing death by papercuts. An exception here, an exception there, and pretty soon, the rights are meaningless.

The SCOTUS made a great unanimous decision the other day, which said that a warrant is now required for GPS trackers. That's a step in the right direction. It gives me hope that no matter how many conservative or liberal judges we have up there, our civil liberties matter.

[olevetonahill]

It's pretty scary what's happening to our civil liberties. This particular case isn't all that bad as this is just a lone wolf federal judge who has made a pretty disturbing decision. It doesn't set precedent, so outside of this individual case, where the turd probably deserves to at least be made to sweat, it's not a big *** deal (yet). The problem is that this isn't just a single decision floating out there on an island. Our 4th and 5th Amendment rights are basically experiencing death by papercuts. An exception here, an exception there, and pretty soon, the rights are meaningless.

The SCOTUS made a great unanimous decision the other day, which said that a warrant is now required for GPS trackers. That's a step in the right direction. It gives me hope that no matter how many conservative or liberal judges we have up there, our civil liberties matter.


But, But, But . If Ya aint doing anything wrong,

[Midtowner]

But, But, But . If Ya aint doing anything wrong,

The federal criminal code is around 50 titles long and 23,000 pages. You probably can't even pass gas without violating something in those books. It's a fine line between a free society and a police state, and those civil liberties are that fine line.

[olevetonahill]

The federal criminal code is around 50 titles long and 23,000 pages. You probably can't even pass gas without violating something in those books. It's a fine line between a free society and a police state, and those civil liberties are that fine line.
Im in agreement with you on this . Its that so many have said that here i was just bringing it back up

[Ike]

Question: Imagine one had a safe that was impossible to break into without the key. (yes, I know no such thing exists, but imagine for a minute that it does. If that's too much for you, imagine that breaking into it without the key would result in the destruction of everything inside). Is it a violation of civil rights for a judge to order the owner of the safe to turn over the key to that safe?

This seems fairly analogous to what is being done here.

[Wishboned]

The federal criminal code is around 50 titles long and 23,000 pages. You probably can't even pass gas without violating something in those books. It's a fine line between a free society and a police state, and those civil liberties are that fine line.

Not federal but...

http://www.dailytelegraph.com.au/news/weird/drunk-man-jose-cruz-charged-for-assault-farts-on-policeman/story-e6frev20-1111117581109

[Midtowner]

Not federal but...

http://www.dailytelegraph.com.au/news/weird/drunk-man-jose-cruz-charged-for-assault-farts-on-policeman/story-e6frev20-1111117581109

That reminds me of a case we read in law school back in my 1L days... A shock jock radio host was hosting some sort of anti-smoking fella. To tick him off, he lit up a big stogie and blew smoke in the guy's face. Sumbitch took it to trial on a civil assault charge and won a whole dollar. It held up on appeal because the particulate matter of the smoke was enough to create the contact required for a battery.

I guess the particulate matter of a fart would also be enough to constitute a battery. Never had considered it 'til now...

[Midtowner]

Not federal but...

http://www.dailytelegraph.com.au/news/weird/drunk-man-jose-cruz-charged-for-assault-farts-on-policeman/story-e6frev20-1111117581109

That reminds me of a case we read in law school back in my 1L days... A shock jock radio host was hosting some sort of anti-smoking fella. To tick him off, he lit up a big stogie and blew smoke in the guy's face. Sumbitch took it to trial on a civil assault charge and won a whole dollar. It held up on appeal because the particulate matter of the smoke was enough to create the contact required for a battery.

I guess the particulate matter of a fart would also be enough to constitute a battery. Never had considered it 'til now...

[olevetonahill]

That reminds me of a case we read in law school back in my 1L days... A shock jock radio host was hosting some sort of anti-smoking fella. To tick him off, he lit up a big stogie and blew smoke in the guy's face. Sumbitch took it to trial on a civil assault charge and won a whole dollar. It held up on appeal because the particulate matter of the smoke was enough to create the contact required for a battery.

I guess the particulate matter of a fart would also be enough to constitute a battery. Never had considered it 'til now...
Well that would stink

[TUSooner]

Is she saying that the act of speaking her password is self-incrimination?! That's certainly novel. I would say the incriminating stuff is not the password, but the stuff on the hard drive. A valid warrant should make that available. The password itself is not incriminating, IMHO. I would think there are analogous rulings on other statements (your name?) that are themselves not incriminating but that lead to incriminating evidence. (EDIT: Telling where the gun is would not seem to be analogous.)

This seems analogous to being confronted with a valid search warrant for your house and refusing to open the door. Suppose you had a fancy-schmancy lock on your door that could only be opened by the sound of your voice or some other bio-ID thingy, could you withhold any of those in the face of a legitimate warrants? Hmm...What's the cyber equivalent of a battering ram?

I'm usually all on the side of construing the 4th & 5th against the Gubment, but this sounds like a loser for the lady in question. It would seem wholly unfair to society to allow people to avoid valid warrants by such sophistry. But I could be wrong.

Am I missing something?


EDIT: I commend to your attention Ike's hypothetical about the safe.

[TUSooner]

On the other hand. Maybe in the hypotheticals about the self-destroying safe or the voice-activated lock, the gubment is just SOL unless they can find away to get at the stuff without your help. Weirder rulings have come down.

[Viking Kitten]

This is why I would be a horrible judge. There are good arguments on both sides of the question, and if you can't pick a winner, do you err on the side of protecting the public from scumbags? Or do you err on the "big picture" side of civil liberties, meaning protecting the public from the government? Makes my head spin.

[Midtowner]

On the other hand. Maybe in the hypotheticals about the self-destroying safe or the voice-activated lock, the gubment is just SOL unless they can find away to get at the stuff without your help. Weirder rulings have come down.

I read the 5th Amendment to say that a criminal defendant has ZERO responsibility to assist the government in prosecuting them.

[Midtowner]

This is why I would be a horrible judge. There are good arguments on both sides of the question, and if you can't pick a winner, do you err on the side of protecting the public from scumbags? Or do you err on the "big picture" side of civil liberties, meaning protecting the public from the government? Makes my head spin.

It's not a judge's job to protect us from scumbags. That'st he prosecution's job. The judge is supposed to interpret the law and make evidentiary and other rulings consistent with the statutes and the Constitution. Whether the scumbag gets off or not shouldn't be the judge's concern, unless, of course, said scumbag is an idiot and has waived jury trial.

[Viking Kitten]

Isn't is the job of a judge to make sure justice is served?

[Midtowner]

Isn't is the job of a judge to make sure justice is served?

It's the job of the judge to follow the law regardless of esoteric concepts of justice.

[rekamrettuB]

I read the 5th Amendment to say that a criminal defendant has ZERO responsibility to assist the government in prosecuting them.

Correct but could a judge not look at things like "saving time/money" as cooperating and might look kindly when bringing down the hammer? Criminals get credit for good behavior against time spent in the pokey. The article doesn't tell the whole story, unless I skimmed by it. Was there a warrant and has the laptop/computer been confiscated? If so, it will be unlocked with or without her password.

[Viking Kitten]

It's the job of the judge to follow the law regardless of esoteric concepts of justice.

And what about when the law is murky, like it is here?

[Midtowner]

Correct but could a judge not look at things like "saving time/money" as cooperating and might look kindly when bringing down the hammer? Criminals get credit for good behavior against time spent in the pokey. The article doesn't tell the whole story, unless I skimmed by it. Was there a warrant and has the laptop/computer been confiscated? If so, it will be unlocked with or without her password.

I've never done a federal criminal case. I do know that the judge has to follow the federal sentencing guidelines in imposing the sentence. I'm not sure how much wiggle room there is there. That said, if the Defendant is still in the process of fighting whether or not certain evidence even comes in, they're angling for a not-guilty verdict. It may well be that the state needs this evidence in order to get its conviction. If that's the case, in my opinion, tough **** for the prosecution.

[Midtowner]

And what about when the law is murky, like it is here?

Then she makes a call and they go on. There'll maybe be an appeal, maybe a plea based upon the evidence coming in... most likely a plea.

[Viking Kitten]

Okay, that's the whole point I was making. She has to make the call, and I would hope whatever she decides is in the interest of serving justice.

[I Am Right]

She will be ok as long as she doesn't smoke.

[TUSooner]

It's the job of the judge to follow the law regardless of esoteric concepts of justice.

I perceive you have never tried to study law, because anyone who has done so seriously would never offer a trite "answer" like that. That sounds like something you'd hear from a conservative talk-radio hack. It's easy to say (like so many mindless political slogans) and true enough when the law is plain, but it ignores the often crucial question of "what is the law." Your statement is the first sentence of a debate, not the last one.

And law may not be synonymous with justice, but what do we base law on if not "esoteric concepts of justice?"
Sheesh. I don't want any law that's estranged from justice.

[JohnnyMack]

This is why I would be a horrible judge.

That and you're a woman.

[Midtowner]

I perceive you have never tried to study law,

I study and practice law every day for a living.. so you'd be wrong.

The idea of "justice" I'm getting from the OUI peanut gallery is that they want the Judge to make whatever rulings are necessary to ensure that the Defendant goes to the pokey. That isn't justice. A lot of the time, our civil liberties will prevent the state from getting a conviction of a guilty person. Better to let 100 guilty men go free and all of that...

[Viking Kitten]

That and you're a woman.

Takes one to know one, pretty.

[TUSooner]

I've never done a federal criminal case. I do know that the judge has to follow the federal sentencing guidelines in imposing the sentence. I'm not sure how much wiggle room there is there. That said, if the Defendant is still in the process of fighting whether or not certain evidence even comes in, they're angling for a not-guilty verdict. It may well be that the state needs this evidence in order to get its conviction. If that's the case, in my opinion, tough **** for the prosecution.

The federal sentencing guidelines are advisory only, since 2005 (Booker is the SUP CT case). But the judges are supposed to calculate a guidelines sentence , at least to get a starting point for the sentence they ultimately impose. You can get credit for acceptance of responsibility, and increases for "obstructing justice." It would be problematic for a judge to increase a sentence based on a defendant litigating to protecting his constitutional rights, but it would not be a such a problem to deny credit acceptance of responsibility for the same reason.

[Viking Kitten]

The idea of "justice" I'm getting from the OUI peanut gallery is that they want the Judge to make whatever rulings are necessary to ensure that the Defendant goes to the pokey. That isn't justice. A lot of the time, our civil liberties will prevent the state from getting a conviction of a guilty person. Better to let 100 guilty men go free and all of that...

OUI? Most of the people in this thread have been right here on the South Oval many years longer than you.

[TUSooner]

I study and practice law every day for a living.. so you'd be wrong.

The idea of "justice" I'm getting from the OUI peanut gallery is that they want the Judge to make whatever rulings are necessary to ensure that the Defendant goes to the pokey. That isn't justice. A lot of the time, our civil liberties will prevent the state from getting a conviction of a guilty person. Better to let 100 guilty men go free and all of that...

Well I stand corrected on your being a lawyer. But why would you then make such a facile statement when you know things are seldom so cut and dried?

[TUSooner]

I read the 5th Amendment to say that a criminal defendant has ZERO responsibility to assist the government in prosecuting them.

What about providing blood, dna, identifcation info, etc? For a lawyer, you sure speak in a lot of absolute terms.

[Midtowner]

OUI? Most of the people in this thread have been right here on the South Oval many years longer than you.

Slip of the fingers.. forgot the name of the forum.. Mortal sin, I know.

I've been here since 2006 though, so I've been here awhile.

[Midtowner]

What about providing blood, dna, identifcation info, etc? For a lawyer, you sure speak in a lot of absolute terms.

Used to not have to provide blood, now it's not considered a search. I'd say that computer passwords are a lot different than providing ID though, but you're right of course, there are situations where the 5th doesn't really apply. At first glance, I don't agree with the judge's decision. Am I going to go to Westlaw to find something to back that up? Nah.. it just smells bad. I'll save my real legal research for paying clients.

[TUSooner]

Used to not have to provide blood, now it's not considered a search. I'd say that computer passwords are a lot different than providing ID though, but you're right of course, there are situations where the 5th doesn't really apply. At first glance, I don't agree with the judge's decision. Am I going to go to Westlaw to find something to back that up? Nah.. it just smells bad. I'll save my real legal research for paying clients.

Now I am ABSOLUTELY CERTAIN that you are a practicing lawyer. :biggrin:
Me? I'll wait for the opinion. ;)

[SoonerAtKU]

I admit, I haven't read the documentation, but doesn't the court have a warrant to execute the search? If they have a court order, based on probable cause, wouldn't this be a failure to comply? If no court order, then it's a 5th amendment issue, but once there is pc and an order issued, isn't the legal question answered in this case? The judge decided it was legal to require it because of probable cause, so it's legal until appeal.

I honestly don't see how it's different than opening a safe or basement or car trunk upon being presented a search warrant. The warrant has to state explicitly what they're looking for or hope to find inside, otherwise you can't issue one. Police aren't allowed to just "snoop" through stuff "hoping" to find anything unless the property owner grants permission. This isn't that. If it was and a judge was issuing an order without probable cause, then you have a constitutional issue and a due process appeal waiting to happen.

[SoonerAtKU]

Just read this quote in the article:

"In addition, the EFF said, the government had not specified what it was looking for on the Fricosu's laptop, making it seem like an 'evidence-fishing trip.'"

That is the key here, and is conveniently left out of the article. What was the probable cause here prompting the search of the computer? Now, the prosecution and law enforcement probably think it's pretty clear-cut that someone involved in fraud using a computer might have evidence there, but that's the point of requiring the warrant to be explicit in what they expect to find inside. If they catch anything else while executing the search, wouldn't that be inadmissible?

[TUSooner]

Just read this quote in the article:

"In addition, the EFF said, the government had not specified what it was looking for on the Fricosu's laptop, making it seem like an 'evidence-fishing trip.'"

That is the key here, and is conveniently left out of the article. What was the probable cause here prompting the search of the computer? Now, the prosecution and law enforcement probably think it's pretty clear-cut that someone involved in fraud using a computer might have evidence there, but that's the point of requiring the warrant to be explicit in what they expect to find inside. If they catch anything else while executing the search, wouldn't that be inadmissible?

I was assuming that there was a valid warrant (when I gave my equivocal non-answer) . Maybe the validity of the warrant is being challenged, which is not a very novel thing.

[oudavid1]

If the password is set to the drive itself(which I assume), you can get the information off without it but it is expensive and could easily be lost. If you steal from people, I think it is ok to lose certain computer rights, especially since information relevant to the case is probably on that drive. I know that I would never let a HDD leave my house without passing through magnetic fields.

[Sooner5030]

the ignorance here is the assumption that we all store data on a drive in the same manner or with the same system as everyone else. The safe analogy doesn't make sense as the contents and storage capability is physical. What if I write my own linux based OS and store data that will never be accessible when a certain password is entered. I could even call the login 'root' to think they have access to everything.

[jkjsooner]

the ignorance here is the assumption that we all store data on a drive in the same manner or with the same system as everyone else. The safe analogy doesn't make sense as the contents and storage capability is physical. What if I write my own linux based OS and store data that will never be accessible when a certain password is entered. I could even call the login 'root' to think they have access to everything.

Of course you could do something like that. If they were able to prove you did something like that then I'm guessing they could charge you with obstruction.

Either way, the chance that this person created such a fail-safe is pretty close to 0%.

[8timechamps]

Now, imagine that little girl is WHITE.




BAM! mind = blown

[cleller]

On one hand, I like the fact that a judge can resolve an issue like this from the bench. Do what he says or go to jail. In this instance, I agree with the ruling. Someone in the legal process has to have that kind of a hammer to swing.

Is it really much different than subpoenaing files? Turn them over or go to jail. They are locked up? Give us the key or we'll break in. Like others have stated, her password will not keep them from recovering the files.

On the other hand sometimes judges do such stupid, harmful things in their rulings, you'd like to tar and feather them. If a police officer made such an error, he'd be sued for every penny he'd ever make, but judges are special, they're immune.

[sooner_born_1960]

I'm sorry, your honor. I don't remember it.

[OUDoc]

I'm sorry, your honor. I don't remember it.
The Oliver North defense.

[olevetonahill]

I'm sorry, your honor. I don't remember it.


The Oliver North defense.

YUp, Just go with
Im sorry yer honor but I got the CRS disease and havta have that kinda **** wrote down . After the PoPos trashed my shack lookin fer **** I cant find it anymore n.

[olevetonahill]

I'm sorry, your honor. I don't remember it.


The Oliver North defense.

YUp, Just go with
Im sorry yer honor but I got the CRS disease and havta have that kinda **** wrote down . After the PoPos trashed my shack lookin fer **** I cant find it anymore n.

[rekamrettuB]

She should just hire an interpreter...the Sammy Sosa defense.

[Viking Kitten]

Now, imagine that little girl is WHITE.




BAM! mind = blown

I still don't know why that cracked me up as much as it did.

[cleller]

He's one part man, one part machine,
He's Ollie North - The Mute Marine.

Good old SNL skit with William Shatner. The one vid of it I found would not open. Dang SOPA.

[8timechamps]

I still don't know why that cracked me up as much as it did.

For a minute, I thought that flew right over the radar. Thanks for bailing me out!

[Killerbees]

I think this woman screwed herself twice.

First she use PGPdesktop to encrypt the hard drive when she should have used Truecrypt.

I suppose it's possible to break the encryption on either but its not easy and its beyond the resources of the FBI and state.

Second they recorded a phone conversation where she admits to knowing the password and being able to access the data on the laptop so that is what is allowing the Judge to order her to provide the password without violating her 5th amendment rights. She lost plausible deniability by admitting that she has the password.

Lessons learned. Use Truecrypt and never admit you know the password. But if you accidently do, truecrypt can still protect you by hiding a drive within a drive and as long as you never admit to there being a hidden drive they can never prove there is actually one there

[Turd_Ferguson]

That reminds me of a case we read in law school back in my 1L days... A shock jock radio host was hosting some sort of anti-smoking fella. To tick him off, he lit up a big stogie and blew smoke in the guy's face. Sumbitch took it to trial on a civil assault charge and won a whole dollar. It held up on appeal because the particulate matter of the smoke was enough to create the contact required for a battery.

I guess the particulate matter of a fart would also be enough to constitute a battery. Never had considered it 'til now...STEP would prolly get the death penalty...

[soonerhubs]

I think this woman screwed herself twice.

First she use PGPdesktop to encrypt the hard drive when she should have used Truecrypt.

I suppose it's possible to break the encryption on either but its not easy and its beyond the resources of the FBI and state.

Second they recorded a phone conversation where she admits to knowing the password and being able to access the data on the laptop so that is what is allowing the Judge to order her to provide the password without violating her 5th amendment rights. She lost plausible deniability by admitting that she has the password.

Lessons learned. Use Truecrypt and never admit you know the password. But if you accidently do, truecrypt can still protect you by hiding a drive within a drive and as long as you never admit to there being a hidden drive they can never prove there is actually one there


I was thinking the same thing.

[JohnnyMack]

http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-amendment-right-against-self-incrimination-not-to-decrypt-encyrpted-computer/

[TUSooner]

http://volokh.com/2012/02/23/eleventh-circuit-finds-fifth-amendment-right-against-self-incrimination-not-to-decrypt-encyrpted-computer/

I fear I would have got zero credit if that were a law school exam question. :-/

(Of course, I didn't have the advantage of studying.)

[yermom]

after listening to hackers, the eff and other privacy advocates in Vegas for the last few years, i had a pretty good idea it would go that way...

[jkjsooner]

truecrypt can still protect you by hiding a drive within a drive and as long as you never admit to there being a hidden drive they can never prove there is actually one there

I'm curious how this works. It would seem to be a very difficult task to hide the fact that there is encrypted data on a drive.

First off there would have to be sectors that are not available to the primary partition. That in itself would lead me to believe that there might be another partition there.

Second, it would seem to be hard to create encrypted data that has the same signature as unused drive space. I suppose if you're operation system routines clears out unused sectors with random data then it could possible have a similar signature as the encrypted portion but if not it would seem to me that some type of statistical analysis could show that there is encrypted data there or at least an encrypted partition that may or may not have data in it.

[picasso]

Was her username Big_Bosoms_39?

Just askin'.