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Lux in Tenebris
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6,913 Posts
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Ok...since i'm an IT guy by profession, and paranoid by choice, i thought this would interest my fellow OPSEC/Security minded folks...I use encryption software (true crypt) and many of my clients use it for compliance reasons too...There are man yways to encrypt a computer, but this has far reaching influence IMHO....

July 11, 2011 12:07 AM PDT

DOJ: We can force you to decrypt that laptop


Read more: http://news.cnet.com/8301-31921_3-2...rce-you-to-decrypt-that-laptop/#ixzz1SGo2xcxl

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.

In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"

To the U.S. Justice Department, though, the requested court order represents a simple extension of prosecutors' long-standing ability to assemble information that could become evidence during a trial. The department claims:


Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.


Prosecutors stressed that they don't actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding "the password to the drive, either orally or in written form."

The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled "Compelled Production of Plaintext and Keys.")

Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's mind, so why shouldn't a passphrase be shielded as well?

In an amicus brief (PDF) filed on Friday, the San Francisco-based Electronic Frontier Foundation argues that the Justice Department's request be rejected because of Fricosu's Fifth Amendment rights. The Fifth Amendment says that "no person...shall be compelled in any criminal case to be a witness against himself."

"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it," said EFF Senior staff attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

The EFF says it's interested in this case because it wants to ensure that, as computers become more portable and encrypting data becomes more commonplace, passphrases and encrypted files receive full protection under the Fifth Amendment.

Because this involves a Fifth Amendment claim, Colorado prosecutors took the unusual step of seeking approval from headquarters in Washington, D.C.: On May 5, Assistant Attorney General Lanny Breuer sent a letter to John Walsh, the U.S. Attorney for Colorado, saying "I hereby approve your request."

While the U.S. Supreme Court has not confronted the topic, a handful of lower courts have.

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).

A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.

One argument published in the University of Chicago Legal Forum in 1996--constitutional arguments among legal academics have long preceded actual prosecutions--says:


The courts likely will find that compelling someone to reveal the steps necessary to decrypt a PGP-encrypted document violates the Fifth Amendment privilege against compulsory self-incrimination. Because most users protect their private keys by memorizing passwords to them and not writing them down, access to encrypted documents would almost definitely require an individual to disclose the contents of his mind. This bars the state from compelling its production. This would force law enforcement officials to grant some form of immunity to the owners of these documents to gain access to them.


Translation: One way around the Fifth Amendment is for prosecutors to offer a defendant, in this case Fricosu, immunity for what they say. But it appears as though they've stopped far short of granting her full immunity for whatever appears on the hard drive (which may not, of course, even be hers).

Fricosu was born in 1974 and living in Peyton, Colo., as of last fall. She was charged with bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs that were facing "imminent foreclosure" or whose owners were relocating outside the state. Some of the charges include up to 30 years in prison; she pleaded not guilty. Her husband, Scott Whatcott, was also charged.

A ruling is expected from either Magistrate Judge Michael Hegarty or District Judge Robert Blackburn.


Here's a really scary article from Jayson Ahern
Deputy Commissioner, U.S. Customs and Border Protection
August 5, 2008

http://www.dhs.gov/journal/leadership/2008/08/answering-questions-on-border-laptop.html

Answering Questions on Border Laptop Searches

We’ve received several comments from readers regarding my recent post about laptop searches at the border. I’d like to take a few minutes to try to answer some of your questions and set straight some misinformation that is circulating with regard to this long-standing policy.

First, it’s important to note that for more than 200 years, the federal government has been granted the authority to prevent dangerous people and things from entering the United States. Our security measures at the border are rooted in this fundamental fact, and our ability to achieve our border mission would be hampered if we did not apply the same search authorities to electronic media that we have long-applied to physical objects--including documents, photographs, film and other graphic material. Indeed, there are numerous laws that apply to such material at the border including laws regarding intellectual property rights, technical data that can be imported or exported only under state department license and child pornography.

In the 21st century, terrorists and criminals increasingly use laptops and other electronic media to transport illicit materials that were traditionally concealed in bags, containers, notebooks and paper documents. Making full use of our search authorities with respect to items like notebooks and backpacks, while failing to do so with respect to laptops and other devices, would ensure that terrorists and criminals receive less scrutiny at our borders just as their use of technology is becoming more sophisticated.

This result would be ironic given that this same technology actually enables terrorists and criminals to move large amounts of information across the border via laptops and other electronic devices. At the end of the day, we have a responsibility to search items — electronic or otherwise — that are being transported across our borders and that could potentially be used to harm our nation’s citizens or that are otherwise contrary to law.

Second, this is not a new policy. We’ve been searching laptops of those who warrant a closer inspection for years. In fact, we’ve taken the unprecedented step of posting online (PDF 5 pages - 161 KB) a policy that would typically be reserved for internal purposes. This information is not new and has been publicly debated countless times. Indeed, the 9th Circuit Court of Appeals recently confirmed the constitutionality of suspicionless laptop searches at the border.

This brings me to my third point, which is that travelers whose laptops are searched represent a very small number of people. As Secretary Chertoff noted in a recent op-ed,


"Of the approximately 400 million travelers who entered the country last year, only a tiny percentage were referred to secondary baggage inspection…[and] of those, only a fraction had electronic devices that may have been checked.”
This number is less than one percent of people entering the United States. Contrary to some media accounts, we’re not rolling out a new strategy and screening an exorbitant number of travelers. We’re simply following a common sense border policy that has been in place for years, and has been reaffirmed by the courts.

And finally, to allay any concerns the business community or others may have that their personal or trade information might be put at risk by traveling with their laptops, I urge you to look at our track record. Every day, thousands of commercial entry documents, shipping manifests, container content lists, and detailed pieces of company information are transmitted to CBP so we can effectively process entries and screen cargo shipments bound for the United States. This information is closely guarded and governed by strict privacy procedures. Information from passenger laptops or other electronic devices is treated no differently.

Our Customs and Border Protection officers are trained professionals with a defined mission, and they have neither the time nor the desire to search travelers’ personal belongings for any reason other than to ensure compliance with our customs and related laws and to protect the United States. As the policy’s provisions make abundantly clear, officers are subject to numerous policy restrictions regarding the retention, sharing, and scrutiny of travelers’ documents and information.

I hope this has helped answer some of your questions. One of the lessons 9/11 taught us was that we must adapt to 21st century risks and anticipate rather than react to new threats. Our CBP officers are on the front lines every day ensuring that these lessons are heeded. We trust that travelers understand the need for these sensible security measures.
 

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Contego Libertas
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6,775 Posts
JMO but it is protected under the 5th. IF They can't crack the password then they are out of luck. To use an example they mentioned of a safe deposit box: Suppose I buried the key in a location only I knew, They Could cut the box open. Our government actually hires some of the world's best hackers when they are caught. IF they can't crack it, then I'm sorry but they're out of luck.

Personally I wouldn't provide the password, EVEN if "Compelled" to do so. It is "Evidence" contained within my own mind. Therefore protected by the 5th.
 

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Forever Vigilant
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If you are using TrueCrypt in the proper manner, "decrypting" the drive/files upon request will reveal nothing. Of course, knowing my 5th Amendment Rights, I would never feel compelled enough to do it.
 

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Registered
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1,561 Posts
Im not advocating anything illegal

Thermite natures whiteout, easy and cheap to make

can turn ...... Lets say aluminum..... Lets say a couple of pieces of spinning aluminum into a mangled melted pile of scrap....

One would only need magnesium.... Where oh where would a survivalist get magnesium to set off thermite..... Hed need a block a solid block of it...

Meh I guess not
 

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Contego Libertas
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6,775 Posts
And congresses under both parties keep extending with huge bipartisan support.
JMO but this just goes to show that you can't trust either party. The Patriot Act was written by a Democrat, and signed into law by a Republican President. BOTH Parties are in full support of it as well.

Can you imagine what would happen if someone like the Police Chief in Quartzsite Arizona were in office as President? ALL of us would be "Terrorists" and our prison population would more than double in less than a year.
 

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Registered
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I fully agree and support this ladies stand on 5th amendment grounds. This isn't a case of National Security at all.

And even with the powers that are granted to the Federal government in regards to the defense of the nation against Foreign Powers and interests. As the Border agent put forth so well. I think it would still be a hard debate concerning that being applied to a US citizen.

Lets say for instance she had gone on a cruise and was re-entering the US from that cruise. If the cruise ship was of Foreign registry or made port in any foreign location. The Government could use those powers to make their case.

That being said, If terrorists or drugs smugglers wanted to get digital information across the border why walk it across. It would be far easier and secure for them to transmit it. Just use a fragmented file format with encryption, and recompile and decrypt it on receipt. Get the decryption code through normal e-mail or even snail mail to the receiving side using a basic Numerical book code.

Just my $.02
 

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survivalist in training
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1,954 Posts
Guess the next step will just have to be a typed code (password) to destroy all files. If she had that, now that would be funny.
Even if the woman is guilty, crimes would have been committed only against a few people. However, if the government is allowed this tresspass against our freedoms and Constitutional rights, then crimes will be committed against every US citizen. Who is the biggest terrorist?
 

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some strange Nordic man
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You know that you could always rig up a thermite charge that goes off if somebody boots the HDD without following a specific procedure, right?

Have a switch, a well-hidden switch, connected to the power source that if left on will initiate the charge and burn a nice hole right through the disk. Turning the switch off prior to starting the computer prevents this and simply turn it back on when there's no power. You need a tablespoon of thermite mixture to effectively burn through a desktop HDD.

Oh and one more thing, that tablespoon is to do the job quick enough. It WILL burn through and most definitely cause a fire. My issue is I want the disk burned through fast enough so it can't be stopped, I don't care about collateral damage. Keep that in mind, this stuff is basically a way to weld so anything that can ignite, will.
 

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Registered
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Even if the woman is guilty, crimes would have been committed only against a few people. However, if the government is allowed this tresspass against our freedoms and Constitutional rights, then crimes will be committed against every US citizen. Who is the biggest terrorist?
Exactly...this is just another ploy to tear another piece off the Constitution. After all, it's just an old, outdated piece of parchment - Barry said so. :zombie:
 

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I'm the boogey man.......
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6,686 Posts
Think I might write a program that looks like a decryption program but it really erases your hard drive using a DOD approved method.....

"Yes Mr. Jack Booted Agent of the illegitimate communist criminal Eric Holder, I'll decrypt that drive right now............Oops, I don't know what happened but everything is now gone beyond recovery...."
 

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Contego Libertas
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Think I might write a program that looks like a decryption program but it really erases your hard drive using a DOD approved method.....

"Yes Mr. Jack Booted Agent of the illegitimate communist criminal Eric Holder, I'll decrypt that drive right now............Oops, I don't know what happened but everything is now gone beyond recovery...."
Do that and the CIA will pay you for it. :thumb: Wrong password kills all info on it!
 
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