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US 11 Circ: 5th Am. & passphrase demands

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rjh at sixdemonbag

Feb 23, 2012, 8:46 PM

Post #1 of 7 (286 views)
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US 11 Circ: 5th Am. & passphrase demands

The United States 11th Circuit Court of Appeals, which is one small step
away from the United States Supreme Court, has issued a decision in
connection to a grand jury's subpoena requiring the appellant to produce
unencrypted copies of six hard drives.

The appellant attempted to invoke his rights under the Fifth Amendment,
prohibiting anyone from being compelled to testify against themselves in
any United States proceeding.

The court sided with the appellant, and held that he could not be
compelled to produce decrypted data for the government.

Now, this isn't quite a black-and-white issue. This is not going to
establish new nationwide policy on the matter. Don't generalize and
think that just because this one case went this way, all similar cases
will in the future. That said, it's definitely good news for United
States citizens, nationals and residents who use cryptography!

The original decision can be found at:

http://www.ca11.uscourts.gov/opinions/ops/201112268.pdf

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vedaal at nym

Feb 24, 2012, 8:17 AM

Post #2 of 7 (269 views)
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Re: US 11 Circ: 5th Am. & passphrase demands [In reply to]

Robert J. Hansen rjh at sixdemonbag.org wrote on
Fri Feb 24 05:46:40 CET 2012 :

>The court sided with the appellant, and held that he could not be
compelled to produce decrypted data for the government.

-----

Thanks for the link!
(any family Judges who could quickly point you to this type of
access, whom we also have to thank? ;-) )

>That said, it's definitely good news for United
States citizens, nationals and residents who use cryptography!

-----

unfortunate that this had to be a child pornography case ...

(also unfortunate that we can't convince ordinary people to protect
their privacy by using encryption,
while the bad guys seem not only to need no convincing, they use
the encryption so effectively that capable intelligence agencies
can't crack it)

now if only they got a warrant to put in a keylogger before setting
him free ...

vedaal

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rjh at sixdemonbag

Feb 24, 2012, 8:59 AM

Post #3 of 7 (264 views)
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Re: US 11 Circ: 5th Am. & passphrase demands [In reply to]

On 2/24/2012 11:17 AM, vedaal [at] nym wrote:
> (any family Judges who could quickly point you to this type of
> access, whom we also have to thank? ;-) )

No, and let's not talk about the possibility of that happening. :)

They studiously avoid commenting on current cases or controversies.
Doing so is a breach of judicial ethics on the same level as a physician
violating the confidence of medical information -- they take it dead
seriously and deeply dislike even casual talk of the subject. There are
a few exceptions in the ethics code for subjects like teaching law (Dad
teaches a "Current Cases and Controversies Before The Court", for
instance), but family members aren't one of them.

Whenever I mention an opinion, a brief, anything of the sort, you can be
confident of two things: (a) it did not come from my judicial relatives
and (b) I don't know what they think of it.

Every family has unwritten rules they rely upon in order to keep things
sane. This is one of ours. :)

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reynt0 at cs

Feb 24, 2012, 1:46 PM

Post #4 of 7 (265 views)
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Re: US 11 Circ: 5th Am. & passphrase demands [In reply to]

On Thu, 23 Feb 2012, Robert J. Hansen wrote:
> The United States 11th Circuit Court of Appeals, which is one small step
> away from the United States Supreme Court, has issued a decision in
> connection to a grand jury's subpoena requiring the appellant to produce
> unencrypted copies of six hard drives.
. . .
> The court sided with the appellant, and held that he could not be
> compelled to produce decrypted data for the government.
>
> Now, this isn't quite a black-and-white issue.
. . .
> http://www.ca11.uscourts.gov/opinions/ops/201112268.pdf

Interesting cite. So this is what the USA "Miranda" warning
("You have the right to remain silent. Whatever you say
may be used against you.") is all about. The USA Fifth
Amendment protects the right to remain silent on a topic
(here, decryption of something), and also protects the
ideas one might state on a topic if the Government learns
one's ideas as a result of giving one special protection
for not remaining silent (here, whatever would be found by
decryption if the Government does not independently already
know pretty much what it is).

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telegraph at gmx

Feb 24, 2012, 3:30 PM

Post #5 of 7 (267 views)
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Re: US 11 Circ: 5th Am. & passphrase demands [In reply to]

Hi vedaal, gnupg-users,
* vedaal [at] nym <vedaal [at] nym> [24. Feb. 2012]:
> Robert J. Hansen rjh at sixdemonbag.org wrote on
> Fri Feb 24 05:46:40 CET 2012 :
>
>>The court sided with the appellant, and held that he could not be
> compelled to produce decrypted data for the government.

[...]

> unfortunate that this had to be a child pornography case ...
>
> (also unfortunate that we can't convince ordinary people to protect
> their privacy by using encryption,
> while the bad guys seem not only to need no convincing, they use
> the encryption so effectively that capable intelligence agencies
> can't crack it)

obviousely not: http://www.crypto.com/blog/wiretap2010/ this
blogpost says that the 2010 US wiretap report says there were
zero cases where encryption blocked access for state agencies to
interesting data.

Ciao, Gregor
--
-... --- .-. . -.. ..--.. ...-.-

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htd at fritha

Feb 25, 2012, 12:25 AM

Post #6 of 7 (264 views)
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Re: US 11 Circ: 5th Am. & passphrase demands [In reply to]

On 25.02.2012, Gregor Zattler wrote:

> obviousely not: http://www.crypto.com/blog/wiretap2010/ this
> blogpost says that the 2010 US wiretap report says there were
> zero cases where encryption blocked access for state agencies to
> interesting data.

As far as I can see, this article totally lacks any evidence of proof
for its statements...

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rjh at sixdemonbag

Feb 25, 2012, 6:43 AM

Post #7 of 7 (261 views)
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Re: US 11 Circ: 5th Am. & passphrase demands [In reply to]

On 2/25/2012 3:25 AM, Heinz Diehl wrote:
> As far as I can see, this article totally lacks any evidence of proof
> for its statements...

Matt Blaze is a fairly credible blogger, and a reputable cryptographer
who's done some very good work. He also references the United States
Judiciary's 2010 Wiretap Report and Susan Landau's _Surveillance or
Security_. If you're looking for references to back up his factual
claims, I'd suggest starting in either of those two.

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