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  (Source: How Stuff Works)
Child porn suspect's lawyer will have time to prepare a Fifth Amendment defense

A court battle is playing out in the U.S. District Court for the Eastern District of Wisconsin regarding whether the Fifth Amendment of the U.S. Constitution prevents federal prosecutors from forcing a suspect (or companies) to turn over the passwords to encrypted data that would ostensibly be used as evidence against the suspect.

I. To Decrypt or Not to Decrypt

The issue of forced decryption was a subject of academic sparring in the 1990s as the method grew in use, but was not put to the test until 2009 when Judge William Sessions of the U.S. District Court for the District of Vermont ruled [PDF] that forcing a suspected child pornographer to turn over his PGP passphrases did not violate the self incrimination provisions of the Fifth Amendment, which read:

No person ... shall be compelled in any criminal case to be a witness against himself...

Since then in 2010 Judge Paul Borman of the U.S. District Court for the Eastern District of Michigan offered up an opposite opinion in another child pornography case, ruling [PDF] that forced decryption would amount to self incrimination. But in 2012 Judge Robert Blackburn of the U.S. District Court for the District of Colorado tossed another vote of support for mandatory decryption, forcing [PDF] a female mortgage fraud suspect to decrypt her laptop.

FBI Agents
Federal prosecutors have fought for the ability to force suspects to surrender passwords to their computers/encrypted files. [Image Source: Global Elite]

That latter case offered up an interesting twist when the suspect claimed to have "forgot" her password, leading to fresh legal questions (could she be punished for forgetting her password?).  Ultimately the question was left unanswered, as shortly thereafter agents were able to decrypt her laptop without the password.
Mr. Forgetful
A Colo. woman offered up a novel defense to forced decryption, arguing she "forgot" her password -- the question ultimately remained unresolved [Image Source: Roger Hargreaves]

The case against the accused Wisconsin child pornography suspect -- Jeffrey Feldman -- has been equally contentious.

U.S. Magistrate William Callahan Jr. initially this April ruled [PDF] that the suspect was protected under Fifth Amendment privileges, writing:

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.

But last month Judge Callahan was presented new evidence by investigators with the U.S. Federal Bureau of Investigations, leading him to reverse his decision.  He discussed the new evidence commenting [PDF]:

The decrypted part of Feldman’s storage system contains an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders. In these folders, agents found approximately 707,307 files. Among those files were numerous files which constitute child pornography.

Furthermore, he points to photographs and financial records in other folders as establishing that this was indeed the suspect's hard-drive and that he had access to the encryption tools.  Thus he ordered that Mr. Feldman assist agents immediately or face contempt of court and jail time.

II. Child Porn Suspect Gets Temporary Reprieve to Prepare Defense

But in the eleventh hour Mr. Feldman's attorney's appeal to district Judge Rudolph Randa succeeded, buying his attorney the time he needed to prepare a Fifth Amendment defense.  The contempt of court threat was stayed [PDF] and a hearing was scheduled for this fall, with both sides being asked to submit briefs.

Note, some news sites are mistakenly saying the Judge Randa ruled that the Fifth Amendment protected Mr. Feldman.  This is not the case.  Rather, the judge ruled that it is reasonable for his attorney to have the time to prepare a defense around that argument in this important case.
hard drive
The Wisc. case has seen many twists and turns, but agents have already decrypted some of the suspect's files, which they say contain child pornography.

Thus the final decision remains very much up in the air.  (Of course even if Mr. Feldman loses, he could always try the tactic that he "forgot" his passphrase.)

Currently agents have decrypted approximately 20 percent of the suspect's 20 TB storage system.  As mentioned, multiple child pornography files have reportedly been found.

But Mr. Feldman's attorney, Robin Shellow, is insistent on fighting the decryption order, arguing there are bigger civil liberty questions at stake.  She comments to CNET:

I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. This case is going to go many rounds. Regardless of who wins the next round, the other side will appeal, invariably landing in the lap of the Seventh Circuit Court of Appeals and quite possibly the U.S. Supreme Court. The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0

Civil libertarians point out that the Supreme Court has ruled that "compelled testimonial communications" -- such as a suspect's thoughts -- are protected by the Fifth Amendment and argue that passwords/passphrases are essentially "thoughts" as they're stored in the suspect's brain.

Prosecutors, meanwhile, have pointed to Supreme Court rulings allowing prosecutors to force suspects to provide fingerprints, blood samples, voice recordings, or the key to storage areas that contain incriminating evidence.  The latter example (the key) they argue is particularly pertinent/analogous, as a key protects a location from outsiders, much like its digital counterpart, the password.

Source: U.S. District Court for the Eastern District of Wisconsin via Wired

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By lolmuly on 6/5/2013 10:31:22 PM , Rating: 5
obtaining fingerprints, blood samples and voice recordings are allowed because they are methods of identification.

Assuming the prosecution only needed to establish his identity in connection to the drives fingerprints and credit card records would surely work just as well.

In this case they've already established ownership, and are trying to compel the defendant to uncover the data for them. This is akin to taking him out to the desert, giving him a shovel, and telling him to dig up the bodies. The prosecution is within their bounds to turn over the entire desert, but they can't compel a defendant to tell them where to look.

RE: Identity
By Warwulf on 6/6/2013 12:53:16 AM , Rating: 3
Not so much that they're means of identity..

But that one cannot be compelled to reveal the content of one's mind. Fingerprints, blood, rectal vein scans... they are passive testimony that does not convey the contents of one's mind. A key is a physical object, not testimony of the mind... giving a password, on the other hand, comes from the mind.

TrueCrypt's hidden encryption is the solution. You can provide a decryption key to some data and appear in compliance. PROVE that I have any other data that did not get decrypted.

RE: Identity
By foolsgambit11 on 6/6/2013 1:58:40 AM , Rating: 2
Rather than a key, the best analogy (and one there surely must be precedent for at some point in our history, right?) would be if the government had obtained a collection of encoded letters from a suspect's desk. Would the government be able to compel the defendant to decipher those letters?

RE: Identity
By Vertigo2000 on 6/6/2013 10:28:24 AM , Rating: 3
lol... I'm sorry, this is a very serious topic, but when I read your reply I burst out laughing. I know you meant " retinal vein scans", but you wrote " rectal ".

And that made me think of how different the movies would be if rectal scanners were used to pass through high security gates in government or corporate facilities.

RE: Identity
By JPForums on 6/6/2013 11:11:11 AM , Rating: 2
Quick, copyright the idea.
Then sell it to/sue Hollywood for $$$$$$$.
I laughed too.

RE: Identity
By ssobol on 6/7/2013 3:53:25 AM , Rating: 2
I think that it would not be too difficult to prove that there was additional data that was not decrypted. They may not be able to tell what the data contains, but you could show that there was an area of the disk that was being used by something like TrueCrypt.

RE: Identity
By inperfectdarkness on 6/6/2013 4:19:22 AM , Rating: 3
In my opinion, it completely falls within the 5th amendment. This is also why I'm a die-hard True-Crypt fan, and I love some of the features that it has (like bogus decryption, etc). There's a fine line here though. Equipping a system with a memory-wipe for multiple failed attempts could be construed as "Destruction of Evidence".

If people are forced to decrypt their files, the next step is forcing people to install cameras in their bedrooms.

RE: Identity
By 7Enigma on 6/6/2013 10:55:10 AM , Rating: 2
That is a ridiculous slippery slope argument. Seriously? Giving a decryption key is analogous to bedroom cameras?

I don't think so. The proper analogy using your bedroom camera is a criminal HAD a camera installed in his bedroom to film criminal acts, then was arrested, and is now being compelled to decrypt the video files.

One is a prior act, and one is a tin-hat future story used to instill fear to have your idea taken without considering the fallacy of it.

RE: Identity
By Reclaimer77 on 6/6/2013 1:01:02 PM , Rating: 5
Ignorance. The road to Totalitarianism is paved with very small pebbles indeed.

RE: Identity
By anactoraaron on 6/6/2013 11:37:37 AM , Rating: 2
Agreed. But I think all that they need to do is obtain one or two files of child porn on his drive and then they can force him to give up the password, as he's then clearly guilty of a crime. If the SoB isn't willing to give up the password still, he should be found in contempt - and in serious matters like kiddie porn he should be held in maximum security in solitary confinement until the SoB gives it up. Let's face it, if he's in general population somewhere and word gets out he'll be dead before he can be prosecuted.

If there are those willing to say 1-2 files isn't enough then I say that once they find numerous more files from using brute force tactics on the drive, then the defendant should have to pay restitution back to the state for the forcing the state to waste tax dollars.

To me, it's like having a body chopped up in a safe. If the police drill a hole in it and can see a head and can pull blood for testing (confirming a dead person is inside) from inside the criminal/owner should be forced to give up the safe code.

RE: Identity
By JPForums on 6/6/2013 11:58:30 AM , Rating: 2
But I think all that they need to do is obtain one or two files of child porn on his drive and then they can force him to give up the password, as he's then clearly guilty of a crime.
Once he's found guilty of the crime, I don't really see a need to get him to give up the password. He's guilty, end of story. It isn't like thievery where each additional stolen item is additional harm to the victim or murder where each additional murder increases the number of victims and damages to families and the population at large. Downloading a picture/video once or a million times does no further damage to the actual victims. What they should do is stop wasting time and money on the guy they've already proven guilty, throw him in jail, and get back to finding the SOBs that made the pictures/videos in the first place. At this point, now that he is no longer on trial and it is no longer self incrimination, they could compel him to give up the password to further their investigation into the source of the problem.

RE: Identity
By anactoraaron on 6/6/2013 12:18:33 PM , Rating: 2
Perhaps I phrased that wrong... I think what I was getting at was that then the prosecution would have probable cause to suspect that there were more illegal files/pictures which they could argue in court to make the guy give up the password.

Yeah, they need to go after the SOB's making the stuff.

Amendment to the 5th Amendment
By 7Enigma on 6/6/2013 7:19:43 AM , Rating: 1
We seriously need to tease out extremely different forms of crimes, and the way we protect or expose the populace.

I'm not a fan of the 5th Amendment in general. I'm a fan of the truth. Just because someone can't prove without your own help you did something doesn't mean you didn't do it, or that you shouldn't pay the consequences for doing it. But I digress since we all know the 5th isn't going anywhere.

So I propose a compromise: Any physical crime, one that harms an actual person (no folks, corporations are not people), are exempted from 5th Amendment status. You shoot your wife and write in an encrypted journal how great it was, you's going to jail. You video tape a physical crime of a minor/adult, you're going to pay for your deeds. You post a picture of yourself involved in a hate crime against a person/group of people to a private website, you get the idea. See this is easy.

You videotape yourself breaking into a house, you falsify documents, you drain a companies 401k, you illegally download/trade files, etc., etc., etc. congrats you get the option to plead the 5th. Yes some of those indirectly hurt people, but there is no direct bodily harm so the difference is quite large.

This way murderers, rapists, child pornographers, etc. do not gain the benefit of an Amendment that likely had a much broader intent when it was created, and we inject a bit more TRUTH into the justice system.

By mgilbert on 6/6/2013 8:42:06 AM , Rating: 2
Bad idea. Our government has way too much power, and abuses the constitution any time it can get away with it. The last thing we need to do is give up ANY constitutional protections we have. Give them an inch, and they'll take a mile.

By JPForums on 6/6/2013 10:56:09 AM , Rating: 3
They were trying to get away from self incriminating testimony in part because of the propensity for the authorities of the day to "compel" people to give evidence against themselves or even simply associate guilt with their refusal to take oaths.

Today, "compelling" has moved on from physical torture to the often more effective threats to livelihood, social acceptance, and security of the family. The fifth amendment is not an outdated concept. In the 1950s, long after its conception, the fifth amendment was proven relevant in the McCarthy Era.

A little excerpt from someone intimately familiar with the events of that time period:
This way murderers, rapists, child pornographers, etc. do not gain the benefit of an Amendment that likely had a much broader intent when it was created
I honestly agree with the sentiments here. Problem is, in order to use this to get a conviction, you'd have to violate their fifth amendment rights before they were convicted. In other words, you are violating the rights of an innocent man. (America hasn't adopted the guilty until proven innocent model has it?) Alternately, you have to proclaim them guilty before violating their fifth amendment rights. In which case, you don't need to violate their fifth amendment rights to get a conviction.

Something like this could easily be abused, especially for political gain. American politicians have not shown themselves to be above leveling false accusations against their rivals when it suits them. They've also paid lackeys to give false testimony (see above link). What is to stop them from planting just enough cause for suspicion on one of their opponents to get access to their secret files and look for "evidence". Then apologize when nothing is found and go home happy with the data they really wanted in hand.
Just because someone can't prove without your own help you did something doesn't mean you didn't do it, or that you shouldn't pay the consequences for doing it.
I also agree with the sentiments here. Problem is despite your personal rumblings or my sympathetic stance, it is actually nearly impossible for someone to commit a crime and not leave some kind of evidence. It usually isn't so much that they can't prove it without your help, but rather they would have to put out more significant effort to do so. The examples you give (except perhaps a physical crime of a minor/adult) are neither realistic nor would self incrimination, in most cases, be necessary. Smart criminals don't store evidence of their violent crimes to be found if they can help it. Stupid criminals wouldn't consider alternate pieces of evidence of their crime. In either case, there would need to be sufficient alternate evidence to suggest that they did so. Enough evidence to suggest they committed the crime is a subset of the evidence necessary to suggest that they committed the crime and stored evidence of it. Interestingly, bypassing fifth amendment rights would be more helpful in convicting nonviolent crimes like fraud, electronic theft, illegal download or reproduction of copyrighted works, etc.

RE: Amendment to the 5th Amendment
By 1prophet on 6/6/2013 10:58:03 AM , Rating: 2

I'm not a fan of the 5th Amendment in general. I'm a fan of the truth. Just because someone can't prove without your own help you did something doesn't mean you didn't do it, or that you shouldn't pay the consequences for doing it. But I digress since we all know the 5th isn't going anywhere.

You need to make some time and watch this to see how easily an innocent person can be accused of doing something he didn't do simply because he thought he was telling the truth.

By roastmules on 6/6/2013 1:17:39 PM , Rating: 2
Everyone should watch this.
I would get this guy to defend the 5th amendment in this or any other case.
The 5th amendment is there to protect the guilty AND the innocent. Forced or misinterpreted testimony has been around for thousands of years.
Also, if this guy was arrested, did they read him his Miranda rights? "...right to remain silent..." he should invoke all of his rights, including Miranda and 5th amendment.
Do you have the right to remain silent when arrested? this case may determine that.

RE: Amendment to the 5th Amendment
By norjms on 6/6/2013 11:25:09 AM , Rating: 2
I believe the 5th was put into place to avoid forced confessions. You know like torture because, I'm sure if they torture this suspect enough he'd probably confess to kidnapping the Lindberg baby.

The 5th amendment is necessary and shouldn't be amended as it keeps the powers of a police state in check. Not going to debate if the government actually abides by the rules.

By HostileEffect on 6/6/2013 12:57:39 AM , Rating: 3
I personally had enough reading about how everyone under the sun wants to stick their ugly nose in everyone else' business. So, I just upgraded to 3,072Bit encryption and soon, a privacy respecting VPN. I may go so far as to do full drive encryption on top of it all.

Before anyone rants at me, I live in a barracks and people break into rooms all the time. Also, I'm glad I had the thumb drive in my wallet encrypted with TrueCrypt because it fell out and had files that would embarrass me.

RE: Encryption
By BRB29 on 6/6/2013 11:36:26 AM , Rating: 2
What are you doing in the barracks to need this kind of encryption and protection?

We all know everyone there watches mad porn in the barracks. We all do weird stuff happens. You either have some extremely crazy weird pedophile animal stuff or things you shouldn't have.

I've lived years in Marine Corps Barracks on Lejeune where everyone knows it's the worst barracks in all of the military. Not only that, you also get the weirdest people and the most extreme on all spectrum. None of us had ever need to encrypt anything. If you password it, that's where it ends as there are a ton of other people who will leave their stuff unsecured.

RE: Encryption
By HostileEffect on 6/6/2013 3:43:26 PM , Rating: 3
I like some of my files, especially financial information to have the maximum level of protection reasonably available. Would you like me to justify my No.40 master locks on my closet too? Theft is a big problem here, I've already had my room broken into once, the end.

I've seen some weird stuff in Hawaii, everything from a Harlem Shake to naked wrestling. This is Hawaii, stuff gets bizarre. My stash is my business alone, don't tell me what I can or can't have.

I fix and trouble shoot just about everything and my room looks like an IT shop. I should have taken a different job but I signed up for infantry against advice from respectable people. Grunts aren't exactly smart or gentle when it comes to computers so I'm fixing stuff almost every other week.

Some personal experience with simple locks and passwords...
A windows password is a joke to pass, just pull the drive out and plug it into another computer.
Toshiba anti-theft master password can be beat by removing or in my case, ripping off the CMOS battery. I bought the computer used and Toshiba denies the password even exists.
I demonstrated how easy it is to crack WEP with free tools just so people would stop using it.
The issued combination locks can have the backing pried apart with a knife, most others can be broken off with a tiny grasp on the concept of leverage.

I've tried dust off, didn't work, maybe I didn't hit the lock hard enough.

It comes down to the fact that while a password will keep lazy people and idiots out, sometimes your stuff ends up in the hands of someone who is neither lazy nor an idiot.

Something smells funny to me
By JPForums on 6/6/2013 9:25:06 AM , Rating: 2
I'm not as well versed on breaking encryption as I would like, but something here doesn't quite seem right. How do they decrypt only 20% of the disk? Unless the encryption used was of a (unheard of by me) type that changes keys every so often (requiring the user remember and enter multiple keys of varying strength) you'd only need to get one key to decrypt the whole thing. Whether they brute forced the key or used some undisclosed, sophisticated method to crack the encryption, it seems to me that once the encryption is cracked, it is cracked. As far as I know, sophisticated methods for cracking encryption are basically ingenious methods for reducing the effective complexity of the keys used. So, while you can significantly reduce the set of key you have to look through, you still end up at the same place with a key to decrypt the data. In each of these cases, once the key is discovered, all the data is readable and until the key is recovered, non of it is readable.

Now I fully admit that there are plenty of methods I'm not well versed in and don't even know about, but it seems to me that no matter which method you use the information required to decrypt the data will be the same. Once you have the information required to decrypt part of an encrypted file/folder, you have the information to decrypt the rest.

Any professional cryptanalyst here feel free to enlighten me in the ways of breaking encryption (please be very specific with methods and sources) as my admittedly limited understanding has clearly failed me. Alternately, the prosecution is confident enough that incriminating evidence exists that they are willing to lie about their current decryption efforts in order to push the judge into forcing a password. This sounds equally plausible as if they did have the evidence tying him to a hard drive with child porn on it as the article claims, they wouldn't need to retrieve any further information to put this guy away.

RE: Something smells funny to me
By GatoRat on 6/6/2013 11:01:21 AM , Rating: 2
This has me puzzled as well. You can't partially decrypt something. I suspect that what the government did was find files or remnants of files in slack space, as deleted files, in caches and/or in swap files. It's also possible he had multiple levels of encryption and they decrypted the topmost level (revealing files in the above.)

RE: Something smells funny to me
By JPForums on 6/6/2013 11:37:57 AM , Rating: 2
More likely the former than the later. If he had the sense to use multiple levels of encryption, he probably wouldn't have left every thing they needed for a conviction in the topmost level.

Files in slack space or deleted files could be recovered if they weren't overwritten (enough). Of course, this suggests that the files were downloaded or written in the clear. Swap/page/cache files are a better location as poorly written encryption software could allow decrypted data to be stored in temp files or swapped out of memory to the disk. However, none of this would be conclusive enough to suggest knowledge of the encrypted file/folder. Nothing says he didn't write/modify/download those files in the clear and deleted them.

Still when they say 20% of the encrypted data, I have a hard time understanding how they could quantify any percentage of encrypted data from remnant data in the clear. I suspect the number didn't come from the actual cryptanalysts or perhaps the prosecutors misunderstood what it as in relation to.

By Master Kenobi on 6/7/2013 1:57:28 PM , Rating: 2
When they say 20% they probably just looked at how much data they could see in slack space and compared it to the total size of the drive. Obviously you can get data overlaps, but I doubt lawyers can understand how that works. The other possibility is that this guy is simply using an encrypted partition and not whole disk encryption. It's trivial to determine size if that is the case.

I just had a great idea...
By V-Money on 6/6/2013 1:01:21 PM , Rating: 3
I should design an encryption program that you enter 2 passwords into. The first would be the one used to decrypt everything, and the other one would delete everything on the harddrive using the Gutmann method. This way when people are forced to give up their data they would put in their second password, the program would look as if it were decrypting everything, then it would all be gone. You could then look at the prosecutor with a smirk and say "whoops", then walk away freely :-)

RE: I just had a great idea...
By Invane on 6/6/2013 6:47:54 PM , Rating: 2
Not gonna happen. First thing any computer forensics analyst will do is image your drive ;)

Some Things
By mgilbert on 6/6/2013 8:38:25 AM , Rating: 2
No matter how reasonable it may seem at the time and under certain circumstances, there are some things you just don't do, and ignoring the constitution is one of those things. Our government has way, way too much power as it is, and we need to stand up against anything remotely like this at every opportunity. That's one of the reasons, even as a liberal Democrat, that I oppose any attempt by the government to limit my right to own a gun - we had to rise up and use our guns to stop our government once before, and the time is coming that we are going to have to do it again.

And considering how the government abuses the legal system to imprison innocent people, I'm opposed to the death penalty. Sure, there are plenty that deserve it, but the government will execute an innocent man to cover their asses when they can't find the person who actually committed the crime.

By Reclaimer77 on 6/5/2013 9:38:39 PM , Rating: 1
More like the Government has been given more time to decrypt the drive. Since their case seems to run afoul of that pesky Constitution.

Not that I want to see this scumbag win, but this case could allow a scary legal precedent to be used if the Fifth Amendment is pushed aside here.

By kileysmith104 on 6/9/2013 11:36:24 AM , Rating: 1
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