The "police can't force you to give up your passcode" misconception stems from a case in Virginia from 2014 [2], and while that may still be the case in Virginia, it does not mean you can just say "my phone is locked with a passcode, fuck off cop" in every other jurisdiction.
1: https://9to5mac.com/2017/06/01/fifth-amendement-passcodes-pa...
s/world/country/ fixed that for you.
If you are unwilling to give something you know to someone, no amount of force can take it from you. Had that drive been encrypted using facial biometrics, they could have just knocked him out, glued his eyes open, and taken what they wanted.
What works, and what has been deemed legal, as you probably already know, are not mutually exclusive.
Technology can easily be used to encrypt a hard drive to reveal different things for different passwords. TrueCrypt does it.
Plus you can have cryptographic keys stored with friends or beacons that signify you are safe. For example you hide files on your phone before a flight, and to unhide them you need your host's wifi at your destination.
Until the friend or beacon gives the ok, you can either have your phone LOCKED or have all sorts of files that are encrypted and HIDDEN. The computer can be unlocked but won't show those files.
Why isn't this technology widespread? YOU CANT WHACK EVERYONE!
Contempt?
Requiring a person to unlock a device is not prohibited by the Fifth Amendment simply because the device contains incriminating information that would otherwise be inaccessible to police.
If the police have a valid warrant to search your safe, you are generally required to unlock it for them, even if the safe contains evidence that incriminates you. If you are issued a valid subpoena to produce certain documents in your possession, you are generally required to produce those documents, even if they incriminate you. Compelled decryption of hard drives is fundamentally no different.
It is true that the act of unlocking the safe or producing those documents is itself testimonial in the sense that you are conveying the fact that you know the combination or possess those documents. But under the "foregone conclusion" doctrine, if the state already knows that implicit testimony, then it is not protected by the Fifth Amendment. It's obvious that Rawls knows the password to the drives.
There are legitimate concerns about how search warrants should apply to electronic devices. However, these are Fourth Amendment issues, not Fifth Amendment ones.
If you're interested, Orin Kerr from the Volokh Conspiracy has written several articles about compelled decryption, including with respect to this particular case [1, 2, 3].
1: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
2: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
3: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
It's kind of counterproductive to assume a singular agent "the state" in this context - all legal checks and balances essentially rely on multiple, separate, competing agents of the state controlling each other, separation of powers and all that. If police and all the judges are both on the same corrupt side then there's nothing stopping them from convicting you for murder of Abraham Lincoln and locking you up indefinitely for that, but we're working off of the assumption that this is not the case.
Planting a gun on a defendant is much harder to do than planting a USB drive. If it really was the defendant's, they probably have munition for it, there's biological contamination etc.
It seems to me there should be an onus on the prosecutor to prove that they defendant has the key and isn't giving it up before the defendant is held in contempt of court: "Here's a video showing the defendant access the banned booked on the USB drive, she won't give up the USB-decryption key!"
Read/write access is basically physical access. Anyone with enough resources could accomplish physical access.
It's possible I'm being paranoid, but it seems like most of law is based on series of assumptions. It isn't a purely logical idea, which is why we have so much fun arguing about it. It is fundamentally the hope of writing down logic in a language that doesn't, unambiguously, contain it.
In this particular case the authorities are explicitly arguing that there's no good reason to use a different process for passwords as they currently use for safes, and this (requiring the defendant to unlock it) is the standard procedure, not drilling the safe open.
Sure, to technical folks like us, but notice I said "in the eyes of the law". Furthermore, police can not open a safe without a court order, so guess your reply was a bust all around?
I know they can't open a safe or for that matter a door without a court order. The point was that the comparison between forcing open a safe and forcing someone to produce a passphrase was meaningless because the apparently treacherous question of compulsion to testify against yourself wouldn't be tested when I drill could do the job.
I am not a lawyer but I know enough to know that most people in most discussions are full of it and know little. What actually is mysterious is why people believe that their nonexistent expertise adds to the discussion.
Imagine if the matter were technical and a bunch of non tech people, say the kind who get confused about ram and storage, referring to both as memory,or call the entire thing the cpu were volunteering different insights into the question at hand. It would be useless in a funny sort of way.
What's worse is that trustworthy deniable encryption - which would solve this - is practically non-existent now that TrueCrypt is gone.
Something like "siri delete my iphone code alpha nine x."
Or even an undetectable command like "silly sausages" for example.
Might that stop a judge from being able to send you to prison indefinitely?
Disclaimer: I never studied law
What if it only erases a certain file or partition, so the phone still contains some personal data, but it's like TrueCrypts's plausible deniability?
Do you have a reference for this?
I suppose depends, criminal right thing is to help solve a crime or something I don't know.
Seems similar to using VPN in China. Is it illegal to protect/use your privacy.
People have got to stop martyrizing this guy. He's in jail because the prosecution got a fortuitous decision that says they can hold him as long as they want until he coughs up a password. They aren't fishing for evidence, nor have they used this trick on anyone else. If he went to trial on the evidence already in public, the guy would hang (metaphorically). There is no significant doubt in anyone's mind that this drive contains CP.
But the principle is the important part you say? Sure. Make a principled argument. Don't cite this guy.
It seems to me that they've intentionally chosen a morally-objectionable individual upon which to build a legal precedent, as anyone who speaks in his defense can have his crime thrown back in their face.
We've heard a lot about these so-called "hashes" that prove the presence of CP. It's also pretty easy to make a probabilistic proof about the likelihood of a hash collision between two non-identical files. I would venture that if you can show mathematically that you're 99.9999999% certain that the files are CP, that would qualify for "beyond a reasonable doubt".
It's incontrovertible that if he's committed the crime for which he's been accused, he should be jailed. If they've already proven that crime, then why isn't he already serving his sentence? Or does the prosecution's case rest upon this one piece of evidence, and if so, is he therefore required to testify against himself in order to avoid indefinite detention?
You call it a fortuitous decision, I call it precedent.
While technically true this is false in practice. While they can't force you to provide your passcode they can force you to unlock your phone. Francis Rawls has been in prison for two years now over refusing to decrypt a hard drive.[1] The same principle applies to phones. If a judge finds you in contempt-of-court they can imprison you indefinitely.
1: https://arstechnica.com/tech-policy/2017/09/judge-wont-relea...