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Recordings Cut Both Ways

Recordings Cut Both Ways

It difficult to make an argument against recording police-citizen encounters.   As I've said before, no one has anything to fear from it if they aren't doing anything wrong.  And as I've written about, there may be a Constitutional right to do it anyway, even if the police object.

More and more police departments are jumping on the bandwagon.  Here is a good example of how recordings can save an honest officer from baseless claims

 

Albuquerque Police Department union president Stephanie Lopez said in a statement to KOB, “The desire to frame officers for wrongdoing is a growing issue facing officers every day. We believe that the public should be held accountable for filing false reports against police officers. These incidents can be very damaging to an officer’s career, so we hope that this individual and others face appropriate consequences for their malicious actions.”

 

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Mass Man Arrested for Recording a Cop From His Own Porch

Mass Man Arrested for Recording a Cop From His Own Porch

Police in Massachusetts are at it again

FALL RIVER (CBS) – A Fall River man says he was recording a police officer who was out of control, but instead, he was arrested and his cell phone was seized.

Now the video he recorded is gone. Police say he erased it, even though they were the ones holding the phone.

Imagine that. 

George Thompson says last January he was just sitting on his front porch, watching a Fall River police officer working a paid detail. Thompson says the officer was on his phone and was swearing very loud.

That’s when Thompson pulled out his phone. Thompson says Officer Tom Barboza then rushed him and arrested him, charging him with unlawful wiretapping.

Note:  "sitting on front porch."  This guy is on his own property, not in public.  He's not interfering with anything or anyone.  But apparently, Officer Barboza didn't want to be recorded talking however he was talking to whoever he was talking to.

But in Massachusetts it’s perfectly legal to record video and audio of a public official, including police, as long as they are performing their duties and the recording isn’t hidden.

Even that is Constitutionally questionable.  If the person doing the recording is also the suspect being questioned, they may very well have a Due Process Right to record police, even secretly. 

“I think we all have our basic rights and I think people should not record others secretly or surreptitiously,” Fall River Police Chief Daniel Racine told WPRI.

Oh really?  Because police do that to people all the time.  That's why police departments are full of special interrogation rooms with hidden cameras. 

Thompson claims that two days after his arrest, his phone, which was locked up at the police station, somehow had all of the video erased.

Funny how that happens.

“If a Fall River police officer erased that video, he’s fired,” Chief Racine said. “And I would suspect the district attorney would take out charges.”

George Thompson is not buying it. “They’re investigating themselves and there’s a code of blue and everybody knows that,” Thompson says.

Nothing will happen.  There's no evidence who did or didn't erase the video and no one will confess to anything.  It's too bad that Mr. Thompson wasn't using my iphone app or the ACLU app or Eye Got You Covered.  If so, the video would be stored away safely out of police reach.

 

More:

http://baystateexaminer.com/man-sues-fall-river-police-officer-arrested-video-recording/

 

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Illinois Supreme Court Overturns Ban on Recording Public Officials

 

"The case involved Annabel Melongo, who was arrested for recording three telephone conversations with an assistant administrator at the Cook County Court Reporter's Office.  . . . . She was charged with six counts of eavesdropping in 2010 and spent 20 months in jail because she could not make bail. Her 2011 trial ended with a hung jury."

Kudos to the defendant for fighting back. 

 

 

 http://reason.com/blog/2014/03/20/illinois-supreme-court-unanimously-overt

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More People Are Recording The Police

More People Are Recording The Police

Recording police-citizen encouters favor the people who play by the rules and disfavors those who don't.  There are plenty of good police officers who have nothing to fear because they carry out their job with professionalism.  But then there are the ones that prefer to not be recorded because they fear being held accountable.  Those are probably the ones who need recorded the most.

For example, would you expect police harassment for washing your car in your driveway?  Most people wouldn't.  Most people wouldn't even believe it possible, but thanks to modern technology we see that it is

In the movies, when police come calling, the ordinary citizen has two options: quake or pull out a gun.

In recent time, however, people have realized that they have a third, quite potent option: the cell phone.

They know that if they can film the experience, disbelief will have to be suspended, because the evidence is all too clear.

The latest example of a seemingly innocent man encountering a peculiar visit from a policeman comes from Long Island.

What the filmed evidence seems to show is a policeman wandering onto the man's private driveway and suggesting that it's illegal to wash his car there.

This is a subject I've addressed before.  I think you can record the police in any public space so long as you don't interfere with their job.  I also think that you have a Constitutional right to record your conversations even in a private place when you are the suspect.   Read more below:

Recording Conversations in Georgia

Will They Ever Learn? (Cont'd)

$25,000 For Woman Arrrested For Recording Police

Mistrial for Cop Accused of Recording Judge in Maryland

County Pays $645,549 To ACLU For Unconstitutional Prosecutions

Half of Americans Now Have Smartphones

CopBlock.org Founder Adam Mueller Appeals Convictions

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Apple's "Warrant Canary"

TechCrunch reports that Apple, Inc. has slipped a "warrant canary" into a recent report:

The very last line of Apple’s report today states “Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.”

The cleverness of this becomes evident when you realize that if it had received such an order, it could not disclose it under current rules surrounding national security orders for user data. This tactic of announcing ‘nothing’ with regards to a government subpoena for data is known as a kind of ‘warrant canary’. Basically, Apple says that at this point it has not received any such order. But, if that phrase stops appearing in future transparency reports, this acts as a ‘canary in a coal mine‘ that indicates to users that it may have been forced to comply with such an order and not disclose it in the future.

I think this is clever.  While the Patriot Act would not allow a company to affirmatively report that they have been subpoenaed, there's no prohibition on a company reporting that they have NOT been subpoenaed.   But Apple isn't the first to do this.

Civil Liberties attorney Matt Cagle notes that Lookout Security has also recently stated they’ve never received a national security order for user data.

This tactic was used by offsite backup company Rsync in what is believed to be the first commercial company application. 

Major email providers like Google, Yahoo and now Outlook.com should weekly or monthly send users an email reporting the lack of a subpoena.  Once the emails stop coming, the user would know that his privacy has been compromised.  

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In Re: Decryption of Seized Data

In Re: Decryption of Seized Data

In the United States District Court for the Eastern District of Wisconsin, case 13-M-449, titled "In the Matter of the Decryption of Seized Data Storage System," the court has held that the owner of several hard drives seized by the FBI cannot be compelled to come to court and decrypt the drives for the FBI, because that would violate the Constitutional protection against self-incrimination. 

From the opinion:

On January 22, 2013, a warrant was issued allowing the FBI to enter and search Feldman’s residence, including electronic storage media, for evidence of child pornography. The warrant was executed two days later. 

During the search, Banner spoke briefly to Feldman before he invoked his right to counsel.  Specifically, Feldman stated that he had lived at his current residence for the past 15 years, and that he was the sole occupant of the residence.  Other evidence showed that Feldman is the only person paying taxes and receiving mail at his residence.  Feldman has a computer science degree from the University of Wisconsin–Madison.  He is a longtime employee of Rockwell Automation, currently holding the title of Senior Software Development Engineer.  In 2010, Feldman filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” 

Agents seized 16 storage devices during the search.  Five devices showed no traces of electronic data, and two devices were not encrypted.  The remaining nine devices contained data inaccessible due to encryption.  The encryption programs on the storage devices appeared to be the sort that would lock or damage data if too many incorrect password guesses were made. FBI analysts have spent over four months attempting to access the encrypted files without success. 

On one of the unencrypted devices, a Dell computer, FBI examiners found a peer-to-peer software program called “eMule.”  Within eMule, log files indicated that 1,009 files were received, distributed, or stored using eMule, with most of the files having titles mainly indicative of child pornography.  Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer—particularly, the “F,” “G,” and “I” drives.  The “I” drive corresponded to one of two encrypted devices.  The “F” and “G” drives might correspond to any of the other connected devices.  The Dell computer’s login screen showed only one username, “Jeff.”

So it seems pretty clear that this guy has been downloading some child porn and most likely storing it on encrypted external hard drives.  The FBI apparently gave up trying to break through the encryption themselves and went to the court to force Feldman to do it for them.  But doesn't that violate his right to remain silent?

Yes it does, said the court: 

[T]he government has shown that the encrypted devices contain data. In addition, during the search of the unencrypted Dell computer, the government found a peer-to-peer software program whose log files indicated that 1,009 files were received, distributed, or stored using the program, with most of the files having titles mainly indicative of child pornography. Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer, including one of two encrypted devices. In short, the government already knows the names of the files (which indicate child pornography) and their probable existence on the encrypted hard drives. Under these facts, “[t]he existence and location of the [files] are a foregone conclusion.”

Still, however, there is an issue of possession and authenticity. Feldman has a computer science degree, is a longtime employee of Rockwell Automation (currently, he holds the title of Senior Software Development Engineer), and filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” Accordingly, unlike in Subpoena Dated March 25, 2011, here, the government has shown that Feldman may very well be capable of accessing the encrypted portions of the hard drives.

But the following question remains: Is it reasonably clear, in the absence of compelled decryption,7 that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu [cases], here, Feldman has not admitted access and control.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

So it seems that what really violates his Fifth Amendment protection is admitting that he can decrypt the drives, not necessarily the act of decrypting them.  If the officer had asked early on, "Can you decrypt these for us if you wanted to?" and Feldman had said yes, the case may have turned out differently.

From JSOnline:

FBI Special Agent Brett Banner suggested in an affidavit that the increasingly common use of encryption could become a real hardship for law enforcement if courts don't order suspects to decrypt possible evidence.

Well, yes, it could become a real hardship for law enforcement if citizens had a way to keep things private from the authorities.  That's the point, Agent Banner.  The point of the Constitution and the Bill of Rights is to protect citizens from government.  That means citizens don't always have to do what the government wants, no matter how much the government wants it.

Encryption is amazing stuff when used correctly.  I prefer TrueCrypt myself.  Use a strong key.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

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Will They Ever Learn? (Cont'd)

Two Omaha police officers are facing serious charges because of their reaction to being legally recorded by a bystander, reports KMTV.

Former officer James Kinsella will be charged with felony tampering with evidence, and two misdemeanor charges of obstructing governmental operations and theft by unlawful taking.

Former Sgt. Aaron Von Behren will face misdemeanor charges of accessory to a felony and obstructing governmental  operations.

Both officers as well as two others involved in the incident have been fired from the police force.

A YouTube video that KMTV Action 3 News first aired on March 21st shows a police officer taking down Octavius Johnson during a dispute over parking near 33rd and Seward.

His brother, Juaquez Johnson was recording the incident near the curb when officers chased him into his house.

The police captured Juaquez and apparently destroyed the video.  It has never been found.  So while the police were able to run down Juaquez, steal his phone, and destroy the evidence, they failed to notice the guy across the street who was also recording the scene from inside his home. 

These officers have lost their careers and may lose their freedom because they didn't want to be recorded in a public place.  They successfully captured and destroyed the recording they knew about, but they failed to notice the guy across the street. 

All of the officers in this department need to be educated about the right of citizens to record the goings-on of police officers in public places, as well as how costly it can be when the police infringe upon this right.  And of course, A Due Process Right To Record Police should be required reading. 

Related:

The Sad Case of Lester Eugene Siler

$25,000 For Woman Arrrested For Recording Police

Some Cops Never Learn

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

 

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Statewide Roundup in Child Porn Sting

Statewide Roundup in Child Porn Sting

The Marietta Daily Journal is reporting that Georgia law enforcement executed a statewide roundup of online child pornography suspects: 

Cobb County Police were among almost 50 state agencies that came together Wednesday to show up at front doors with search warrants for 98 suspects accused of distributing child pornography over the Internet.

In Cobb alone, six warrants were issued and numerous computers were taken and submitted for forensic analysis, according to Officer Mike Bowman with Cobb Police.

“No physical arrests have been made at this time,” he said. “Charges may be forthcoming pending the completion of the computer analyses.”

As of 6:30 p.m. Wednesday, there have been 73 search warrants executed statewide and 41 arrests were made in connection with this continuing operation, according to John Bankhead with GBI.

I like these cases not because of the subject matter, but because of the technology. I would be just as interested in these cases if people were rounded up for downloading copyrighted song or movies, but those cases rarely get the attention of law enforcement. 

I used a computer hard drive graphic because that's what these cases will come down to.  The computers will be imaged and examined by bigger computers to see if there's anything on there that is illegal to possess.  After that, charges will be filed, people will be arrested, and the war will begin:

Considering the Peter Mallory just got sentenced to 1,000 years in south Georgia for child pornography, any person who had his computer seized in this raid should already be in a lawyer's office planning their defense.  These charges aren't to be taken lightly.

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Can They Hear You Now?

For most of the past five years (i.e., most of the Obama Administration), the FBI has enjoyed the use of "Stingray", capable of listening in on your cellular telephone calls without a warrant:

FBI investigators for at least five years have routinely used a sophisticated cellphone tracking tool that can pinpoint callers’ locations and listen to their conversations — all without getting a warrant for it, a federal court was told this week.

The use of the “Stingray,” as the tool is called, “is a very common practice” by federal investigators, Justice Department attorneys told the U.S. District Court for Arizona Thursday, according to the American Civil Liberties Union.

Installed in an unmarked van, Stingray mimics a cellphone tower, so it can pinpoint the precise location of any mobile device in range and intercept conversations and data, said Linda Lye, staff attorney at the ACLU of Northern California in a blog post about the case.

Scary.  There are certain people who would much rather talk about what went on during the previous Presidential Administration, but it is long overdue to take a closer look at what is going on in this one.

Full article here.

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Mistrial for Cop Accused of Recording Judge in Maryland

This is outrageous.  Not only should it not be a crime for this officer to record his warrant applications, it should be REQUIRED that warrant applications be recorded for later review by higher courts.  I hope they never convict this officer of anything.

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

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US DEA Can't Crack Apple iMessages (Yet)

US DEA Can't Crack Apple iMessages (Yet)

The United States Drug Enforcement Agency is mad they can't crack Apple iMessages, even with a search warrant.  Why?  Because Apple iMessages sent from Apple-to-Apple devices are not traditional text messages, and they are encrypted. 

iMessages are encrypted messages that can be sent between Apple devices, including iPhones, iPads and even Macs running the OS X platform. The service launched with iOS 5 in 2011and Apple publicly revealed that all sent and received iMessages would be securely encrypted.

DEA officials first discovered that iMessages could be a hinderance to their efforts when a real-time electronic surveillance under the Federal Wiretap Act failed to yield all of a target's text messages. The agency then discovered that the person was using iMessage, which bypassed the text messaging services of carrier Verizon.

 Apple revealed in January that it sees 2 billion iMessages sent each day from a half-billion iOS devices, plus Mac computers, which gained iMessage support last year. iMessage accounts allow users to send and receive their secure messages across all their Apple devices.

Apple's apparent stymying of the DEA was revealed in a government intelligence note . . .  which calls it "impossible" to intercept iMessages, even with a warrant. The note is entitled "Apple's iMessages: A Challenge for DEA Intercept." 

This is another example of the government publicly admitting that civilian encryption is very powerful stuff.  Don't confuse "encryption" for "passwords" because they are very different.  Passwords are apparently easy to defeat.  Encryption isn't. 

Article here.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

 

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Your Teen is Probably a Child Pornographer, Too

Your Teen is Probably a Child Pornographer, Too

Two teens were arrested in a Florida high school after one of them filmed the other having sex with another student:

Deputies say a 17-year-old boy had sex with a 15-year-old girl, reportedly on tables behind some book shelves.  They say the act was videotaped by a 15-year-old boy and shared via Bluetooth transmission with a female student.
 
The 17-year-old boy is now charged with lewd or lascivious battery. The student who videotaped the act is charged with transmission of pornography by electronic device.

The article doesn't say why the teen male was arrested but not the teen female.  It sounds like a consensual act, not battery.  Florida's age of consent for sex is 18, so both teens were below the age.

But what about the 15-year-old who recorded the act with his cell phone?  He recorded two people his own age (or older) having consensual intercourse, probably not realizing that he was producing "child pornography" because he doesn't consider them "children."  Then he transmitted it to another person which is an additional crime.  And the student that received it was then in possession of child pornography and may have shown the child pornography to others.

The crimes just keep adding up.  Do we really want to treat a teen recording other teens having consensual sex the same way we would treat a 60-year-old producing child porn in his basement?  Do we want to label these kids as "sex offenders" and put them on the Sex Offender Registry before they are even out of high school?

Georgia's House Bill 156 was signed in March and looks on its way to the Governor for signature into law.  Basically, it creates misdemeanor exceptions for teen "sexting" under certain circumstances.  This adds a little more common sense to the current Georgia law.   Note that it does NOT change federal law and does NOT apply to people 18 and above.  So while it is a welcome exception, it is still a narrow one. 

UPDATE:  http://reason.com/blog/2015/04/01/teens-charged-for-sex-tape-in-chicago

 

 

More:

Man Sentenced to 1,000 Years

You Are Probably A Child Pornographer

On Second Thought . . .

FBI Applicant Admits to Child Porn

Congress Enhances Child Pornography Sentences

 

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County Pays $645,549 To ACLU For Unconstitutional Prosecutions

County Pays $645,549 To ACLU For Unconstitutional Prosecutions

Taxpayers in Illinois are on the hook for more cop/prosecutorial abuse of people who record the police in public:

In 2012, Illinois saw a rash of cases involving the Illinois Eavesdropping Act, which forbade making audio or visual recordings of people without explicit consent from everyone in the recording. In practice, the law made recording on-duty police officers a felony in the state. The prosecutions of citizens that ensued prompted the ACLU to challenge the state's Eavesdropping Act, and it was eventually ruled unconstitutional on First Amendment grounds in the US Seventh Circuit Court of Appeals.

In 2010, the [ACLU] group brought a case against Cook County State's Attorney Anita Alvarez, who had been prosecuting ACLU staff members for recording on-duty police officers. . . . And now this month, the judge ruled that Cook County taxpayers must foot the $645,549 legal bill the ACLU racked up. 
 
“The Illinois Eavesdropping Act... violates the First Amendment of the United States Constitution as applied to the open audio recording of the audible communications of law enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places,” a January ruling by Judge Sharon Johnson Coleman read. 

Entire article here.  

In addition to paying the ACLU legal bills, I think the prosecutors and police officers involved should be assigned some homework about A Due Process Right to Record Police.  It should be required reading in police academies and prosecutor conferences. 

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Half of Americans Now Have Smartphones

Half of Americans Now Have Smartphones

Apparently we are at the 50% mark of citizens that have smartphones (mostly iOS, Android, and Windows).  I imagine almost all of those telephones have the ability to record audio and video in better quality than digital cameras could just a few years ago. 

With the rise of cameras in everyone's pocket, I anticipate we will see more and more conflict between citizens who want to film the police and the police who do not wish to be filmed.  As a general rule, anyone can film anything in public, so long as they aren't causing a problem by doing so.  Your rights to film in public do not includ the right to film from the middle of the street at rush hour, for example. 

For my work and thoughts on the issue, look here and here.   As always, if you find yourself in a bind because you recorded an officer, give us a call.

Some Cops Never Learn

The Sad Case of Lester Eugene Siler

CopBlock.org Founder Adam Mueller Appeals Convictions

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CopBlock.org Founder Adam Mueller Appeals Convictions

CopBlock.org co-founder Adam Mueller was convicted of felony wiretapping in connection with recorded calls to school and police officials about the arrest of a student at Manchester High School West in New Hampshire.  He has appealed to the New Hampshire Supreme Court

This shouldn't even be a crime.  His biggest problem, though, was that he made the horrible mistake of representing himself: 

Ten days after his August trial, he mailed a motion to the court, seeking to have the verdict set aside or reversed, the charges dismissed with prejudice, the conviction vacated and his release ordered, or, alternatively, a new trial ordered and the remaining sentence stayed. He argued he had been confined in jail, without access to legal materials, and that is why he hadn't filed the motion sooner.

The prosecution objected to the motion and the judge denied it, saying it was not filed within the required seven days and that Mueller himself had requested immediate sentencing after the verdict was returned, and Mueller is an "experienced pro se litigator and knows the rules."

The fact that he has been in court before doesn't mean he "knows the rules" or that he's a lawyer.  Rather, this is a good example of how just because someone represents themselves, it doesn't mean that the court will bend the rules to accomodate them.  He seems like a smart guy and smart guys often convince themselves that they can sit through a Law & Order marathon and then go try their own case to a jury.  That's not how it works. 

Representing yourself is always a bad idea. Worse, this guy may have had a Constitutional claim that he failed to raise and is now likely prohibited from raising. (See my Washington University Law Review article on the subject of recording the police with Professor Glenn Reynolds of Instapundit.com)

 

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Wireless Telephone Tapping

Wireless Telephone Tapping

In many criminal cases the police use "tapped" cellular telephone data to help build their case.  Unfortunately, this can sometime be done even without a warrant. 

"[T]he Senate voted to grant blanket immunity to companies like AT&T, which conspired with the NSA to monitor American digital conversations without government oversight after 9/11. Today's vote continues that immunity, and provides further carte blanche for the American intelligence-gathering apparatus. Phone calls, texts, and emails are all fair game—and a judge doesn't have to give the OK, so long as it's in the name of counterterrorism. Which is a very easy guise.

Read more here.

Compare this to the FBI's Carnivore program from the late 1990's. 

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"You have the right to remain silent about your encryption key . . ."

"You have the right to remain silent about your encryption key . . ."

A U.S. Court of Appeals has upheld your right to remain silent about the key to your encrypted hard drive: 

The 11th Circuit Appeals Court has issued an important ruling on the question of whether or not a defendant can be forced to decrypt a hard drive when its contents could provide additional incriminating evidence. The case in question refers to the actions of a John Doe who was compelled to testify before a grand jury in exchange for immunity from prosecution. Doe was ordered to decrypt the contents of his laptop as part of that testimony, but was told that his immunity would not extend to the derivative use of such material as evidence against him. Doe refused to decrypt the TrueCrypt-locked drives, claiming that to do so would violate his Fifth Amendment right against self-incrimination.

The 11th Circuit’s ruling reverses the lower court's decision to hold Doe in contempt and affirms that forcing him to decrypt the drives would be unlawful. It also states that the district court erred in limiting the immunity it granted Doe to only apply to grand jury testimony and not the derivative use of the evidence in question. The ruling on misapplied immunity means that the 11th Circuit could’ve punted on the Fifth Amendment issue, but the court opted not to do so.

The applicability of the Fifth Amendment rests on the question of what the government knew and how it knew it. Federal prosecutors admitted at trial that while the amount of storage encrypted exceeded 5TB, there was no way to determine what data was on the hard drive — indeed, if there was any data whatsoever. Plaintiffs were reduced to holding up numerical printouts of encryption code that they said “represented” the data they wanted, but were forced to admit that there was no way to differentiate what might be illegal material vs. legal.

The question at hand is whether or not decrypting the contents of a laptop drive is testimony or simply the transfer of existent information. The court acknowledges that the drive’s files are not testimony of themselves, but writes “What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” (emphasis original)

Previous court cases have established that merely compelling a physical act, such as requiring a defendant to provide the key to a safe, is not testimonial. Actions are also non-testimonial if the government can invoke the “foregone conclusion” doctrine by showing with “reasonable particularity” that it already knew that certain materials or content existed.

By decrypting the drives, Doe is admitting “his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” The court dismisses the argument that the contents of Doe’s hard drives are a foregone conclusion, noting that “Nothing… reveals that the Government knew whether any files exist or the location of those files on the hard drives; what’s more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives.”

“The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful… we are not persuaded by the suggestion that simply because the devices were encrypted necessarily means that Doe was trying to hide something. Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”

The strength of this decision is the balance it strikes between the rights of the government and the individual. Rather than focusing on the nature of the pass phrase defendants are ordered to provide, it emphasizes the issue of what the prosecution knows and how it learned it. If the prosecutors had had sufficient data to indicate that illegal materials were stored on Doe’s hard drives, forcing him to testify would’ve been valid under the foregone conclusion principle.

The decision is noteworthy for the nature of Doe’s alleged infraction. Doe was called before the grand jury to testify because an IP address corresponding to multiple hotel rooms where he stayed was found to have accessed child pornography via YouTube. Child pornography is a despicable crime, but deriving legal precedents from a desire to punish someone makes for lousy jurisprudence. The 11th Circuit decision heaps no small amount of scorn on the district court’s attempt to immunize Doe’s testimony without immunizing the defendant, deriding it as akin to asking for “manna from heaven,” in which squeaky-clean testimony mysteriously appears on the courthouse steps without any troublesome questions into how it was obtained.

This decision doesn’t make it impossible for the government to use the contents of an encrypted drive, but it requires that the prosecution demonstrate a knowledge of the contents and data contained therein before being allowed to issue a blanket demand. It’s a fair call, and given the increasing number of similar cases, an important one.

This is very important as more and more poeple encryt their computers using free encryption software like TrueCrypt.  Not only can the government not break in to an encrypted computer with a good encryption key, they also can't force individuals to turn over the key.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

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Cracking Bin Laden's Hard Drives

Few technological advances have been as successful at protecting information from government as the technology of encryption.  I think it is fair to say that the US Government will use everything in its power to defeat whatever types of security Osama Bin Laden used on his computers.  But even that may not be enough:

"If you're doing encryption on the drive properly, meaning you've done your research, looked at the solutions, you follow best practices, have a strong key, and don't have a weak passphrase, then it will probably never be decrypted. Because drive encryption done properly is extremely difficult, it ends up being a brute-force problem," said Hoglund.

In the attorney-client arena, I think it is imperative for an attorney to encrypt client information.  Encryption software like TrueCrypt is free and easy to use.  A computer with an encrypted hard drive stolen in a burglary of a lawyer's office is unlikely to reveal any client secrets to the burglar.  The client is protected, as is the attorney-client privilege.

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The Sad Case of Lester Eugene Siler

The Sad Case of Lester Eugene Siler

Before I moved to Georgia in 2001, I was an Assistant District Attorney General in the Eighth Judicial District of Tennessee.  It is a sprawling 5-county district in two different time zones, but most of my work was in the largest county of Campbell.  When I say "large", I'm talking about maybe 45,000 people, or about 1/15th the size of Cobb County or Gwinnett County, and 1/20th the size of Fulton County of Dekalb County.  Everyone knows everyone else, pretty much.  There's one main high school, one Wal-Mart, one McDonalds.  You can't go to either without seeing someone you know.  So when I became a prosecutor, I already knew many of the cops and had gone to school with many of them. 

Not long after leaving the office five years later, news broke that five officers had been arrested for torturing a local small-time drug dealer named Lester Siler.  I didn't think much of it until I leared that there was a recording.  Apparently, Siler's wife had hidden a recorder when she saw the police approaching the house.  What happened next was awful and heartbreaking.  They threatened and mistreated Siler in order to get him to sign a form consenting to the search of his house, but in the recording you can already hear them beginning to search.

The police would later be arrested and prosecuted federally.  Most or all served prison time.  When I read the transcript of them torture and threaten a guy to sign a document consenting to a search of his house, I wonder in how many more "consent" searches and "voluntary" confessions that were actually the result of torture came across my desk? I have no idea.

Except for Siler's wife recording the event, no one would know about it.  I wouldn't be writing about Lester Siler and you wouldn't be reading about him.  It would be just another drug case where the police claim that the homeowner consented to a search of his home and signed a document saying so.    Even if Siler said otherwise, no one would have believed him.

If you have contact with the police in Georgia, record it.  It can't hurt, and it may help.

John

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Making Us Safer, One iPad at a Time

Making Us Safer, One iPad at a Time

New York Law School student Steven Cohen wrote an article in The New York Times last weekend about how digitizing some aspects of the legal process could streamline cases and enhance efficiency. My favorite part was the opening: 

“I LIKE my cases to age as long as possible, like a fine wine.”   

The Legal Aid lawyer was articulating a basic principle of criminal defense practice: delay helps the accused. People forget, they get scared, they move, and things get lost.

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