Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

[Fugus]

The problem is that it's the responsibility of the authorities to gain access, not the defendant. If they find the key, they can use it. If it's a safe with a combination, they either have to figure out the combination or they're shit out of luck.

Not entirely. They have a valid search warrant to it. They believe he has the key and is intentionally blocking it to prevent them access.

If that is the case, he is in contempt for refusing to follow a valid search order. He effectively holds the key to his own jail cell in that case unless he actually did forget the key which they have enough on him to think otherwise.

[Leyre]

its where he kept all his nickelback stuff on the computer

"Look at this drive"

[Mistame]

Also the Fifth Amendment does not apply to him because, as the article specifically stated, it only applies to witnesses. He is not a witness.

And they're wrong.

nor shall be compelled in any criminal case to be a witness against himself

This means one cannot be compelled to provide evidence that would be self-incriminating and has nothing to do with being a "witness".

Not entirely. They have a valid search warrant to it. They believe he has the key and is intentionally blocking it to prevent them access.

If that is the case, he is in contempt for refusing to follow a valid search order. He effectively holds the key to his own jail cell in that case unless he actually did forget the key which they have enough on him to think otherwise.

Anything that qualifies as "knowledge" is protected.

[Fugus]

They have the hard drive which is what the search warrant was for. What they do not have is his compliance with giving them the password which would be the same as the judge ordering him to give testimony for or against himself, which is a violation of the 5th amendment. The prosecution can hire someone to hack into the device. They cannot make him tell them anything though.

No, they it would not.

Police can not compel someone to unlock a locked device without a warrant, but with a warrant, they can compel them to. It is not considered testimony, it is considered giving them a key.

Just like on your cellphone, if a police just asks you to unlock it, you don't have to. But if they have evidence that actually gives them probably cause to believe it has something illegal, a judge can compel you to unlock it for them.

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Anything that qualifies as "knowledge" is protected.

I believe this is one that has already been settled before. A password is not considered testimony but can not be compelled to be given up without a valid search order.

Fun fact though, while a police officer can't force you to give him the pin number to your phone without a search order, he can compel you to use you fingerprint to unlock it if you have that feature used instead of a pin.

[satimy]

What if you just forget your password

[Flatspriest]

No, they it would not.

Police can not compel someone to unlock a locked device without a warrant, but with a warrant, they can compel them to. It is not considered testimony, it is considered giving them a key.

In that case, he would not be in jail for contempt of court.

[Orange Joe]

Well this bit:



Is certainly wrong.

It's only worded wrong. Fifth Amendment states "nor shall be compelled in any criminal case to be a witness against himself,"

[Lefrog]

His whole argument is he forgot the password, so it comes down to how credible do they think it is that he forgot the password.

This is the only issue I am finding. I side with the judge on the 5th amendment BS, but how can you hold someone in contempt if he truly forgot? There's really no way for the court to prove that he is lying, and so should never be held for not providing a password.

I've forgotten passwords the day after I've made them...

[Mistame]

I believe this is one that has already been settled before. A password is not considered testimony but can not be compelled to be given up without a valid search order.

Fun fact though, while a police officer can't force you to give him the pin number to your phone without a search order, he can compel you to use you fingerprint to unlock it if you have that feature used instead of a pin.

I read that somewhere. But that falls more under your analogy where the "key" is physical, not a stored in one's head. I mean, I don't do anything illegal (a little OCD in that regard), but I'd sooner drag my nuts over hot coals before giving someone a password to my phone/computer, regardless of the reason. No one needs to be snooping through my private pictures/videos (me and ex-girlfriends).

[Fugus]

What if you just forget your password

If he can argue that in court, they will have to release him because then he really does not know. But so long as they have reason to believe he knows it, he is holding his own key to his cell as far as the courts are concerned.

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In that case, he would not be in jail for contempt of court.

Actually, when they compel you to unlock a device with a valid order and you refuse. That would be contempt I believe.

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This is the only issue I am finding. I side with the judge on the 5th amendment BS, but how can you hold someone in contempt if he truly forgot? There's really no way for the court to prove that he is lying, and so should never be held for not providing a password.

I've forgotten passwords the day after I've made them...

True, if he truly forgot, it is sad. And hopefully he can prove it in court.

But they believe he knows it for some reason, but after so long in prison, he should have a valid excuse for saying he forgot and it hold up now.

[Toppy]

Yes, fine, contempt, hold him in contempt which is a valid thing in this case, which they have done, for longer than is normal. With no intent on unjailing him.

This is blatant abuse of the judicial system.

[Orange Joe]

True, if he truly forgot, it is sad. And hopefully he can prove it in court.

But they believe he knows it for some reason, but after so long in prison, he should have a valid excuse for saying he forgot and it hold up now.

Pretty sure our courts don't work that way (not counting civil) In a criminal case it's the prosecutor that has to prove the case. Meaning he would have to prove he does remember.

[Fugus]

I read that somewhere. But that falls more under your analogy where the "key" is physical, not a stored in one's head. I mean, I don't do anything illegal (a little OCD in that regard), but I'd sooner drag my nuts over hot coals before giving someone a password to my phone/computer, regardless of the reason. No one needs to be snooping through my private pictures/videos (me and ex-girlfriends).

As long as they have no legal probably cause valid enough for a judge to sign a search order on your stuff, you are in the clear.

As far as I know, the police can not legally force you to give them a password (though they can compel a fingerprint ID if your phone is setup like that). But if they have enough probably cause to believe you have something illegal on it and get a judge to sign a search order, at that point, they can force you. At which points your nuts will be roasting like chestnuts at that point.

[Mistame]

Pretty sure our courts don't work that way (not counting civil) In a criminal case it's the prosecutor that has to prove the case. Meaning he would have to prove he does remember.

Actually, the court would have to prove he does remember. The burden of proof lies on the accuser, prosecution or the authorities.

As long as they have no legal probably cause valid enough for a judge to sign a search order on your stuff, you are in the clear.

As far as I know, the police can not legally force you to give them a password (though they can compel a fingerprint ID if your phone is setup like that). But if they have enough probably cause to believe you have something illegal on it and get a judge to sign a search order, at that point, they can force you. At which points your nuts will be roasting like chestnuts at that point.

Aside from the hilarious visual, the point is that to me, there's a degree of privacy that no law, judge or even god can invalidate. /shrug Obviously in this case, especially with the hash matches, it's a bit different. But one has to remember that the "authorities" have only as much power as we give them.

[Fugus]

Pretty sure our courts don't work that way (not counting civil) In a criminal case it's the prosecutor that has to prove the case. Meaning he would have to prove he does remember.

If it was a direct charge, but this is contempt for violating a valid search. At this point, he would have to argue that he doesn't know it as they already had enough before to compel him with the knowledge that he did know it.

But after 2 years in prison, I believe this guy has a pretty solid case for claiming he forgot.

[Orange Joe]

Actually, the court would have to prove he doesn't remember. The burden of proof lies on the accuser, prosecution or the authorities.

That makes no sense. How would proving he doesn't remember prove their case? Their case is he DOES remember and isn't giving it up.

[Mistame]

That makes no sense. How would proving he doesn't remember prove their case? Their case is he DOES remember and isn't giving it up.

Sorry. Brain moving faster than my fingers. They have to prove he does* remember. [Fixed]

[Fugus]

Aside from the hilarious visual, the point is that to me, there's a degree of privacy that no law, judge or even god can invalidate. /shrug Obviously in this case, especially with the hash matches, it's a bit different. But one has to remember that the "authorities" have only as much power as we give them.

There is a degree of privacy. They can not force you to testify against yourself or force your lawyer to violate attorney client privilege I believe. Also heard something about your wife being forced to testify against you too but haven't really checked on that as a single man.

But giving a password or pin number they don't consider as testimony, they consider that as giving a key which they can only compel you to do with a court order. Also heard something where if the courts give you immunity for something or something like that, you are no longer to be found as incriminating yourself and you may again be forced to testify.

[Themius]

When I used to be an avid user of Pirate Bay I kept all the files in an encrypted file. The password was so long and ridiculous I had to keep it written down. When I lost the paper I just deleted the container because there was just no way for me to remember wtf I put.

[Mistame]

There is a degree of privacy. They can not force you to testify against yourself or force your lawyer to violate attorney client privilege I believe. Also heard something about your wife being forced to testify against you too but haven't really checked on that as a single man.

But giving a password or pin number they don't consider as testimony, they consider that as giving a key which they can only compel you to do with a court order. Also heard something where if the courts give you immunity for something or something like that, you are no longer to be found as incriminating yourself and you may again be forced to testify.

I think my biggest issue is being "forced" bit. I take orders from no one, ever! Even my boss knows to ask.