
Fifth Amendment Prohibits Compelled Decryption, New EFF Brief Argues - DiabloD3
https://www.eff.org/deeplinks/2013/10/new-eff-amicus-brief-argues-fifth-amendment-prohibits-compelled-decryption
======
philfreo
The EFF is doing some incredibly important work. Please setup a monthly
donation:

[https://supporters.eff.org/donate](https://supporters.eff.org/donate)

~~~
spoiledtechie
Can someone describe to me the important work they are doing maybe in 5 bullet
points? Im cool with donating, but I would love to see why... I don't want my
cash going towards something that is just another political scheme to raise
cash.

~~~
belorn
#1 investigates breaches of Internet civil liberties.

#2 Provide legal support to people who's civil liberties has been violated.
Mostly related to free speech.

#3 Protects security researchers from government harassment, particularly
those who produce encryption software.

#4 Develops software security tools, like https everywhere.

#5 Uses legal tools to get government to admit and publicly release documents
related to surveillance, incorrect search and seizures, anti-file sharing
laws, patents and free speech. see more at
[https://en.wikipedia.org/wiki/List_of_litigation_involving_t...](https://en.wikipedia.org/wiki/List_of_litigation_involving_the_Electronic_Frontier_Foundation)

~~~
tptacek
If you want to fund security tool development, consider contributing directly
to that. For instance, the effort to audit Truecrypt is still raising funds:

[http://istruecryptauditedyet.com/](http://istruecryptauditedyet.com/)

The security of Truecrypt is incredibly important to privacy efforts.

If you're looking to provide legal support to people, consider donating to
ACLU. By the numbers, ACLU appears to be a much more effective way of
converting donations to legal support for civil liberties cases. I have some
reservations about EFF but unreservedly support ACLU.

As a security researcher working in encryption, I'm not sure what #3 is about.
I'm more likely to have the government offer me money (I won't work for the
government, haven't in the past, or even accept DARPA grants) than harass me.

~~~
redthrowaway
> I have some reservations about EFF

As a recurring donor, I'm interested to hear what you don't like about them.

As for protecting security researchers, I suspect the gov't is more interested
in (and likely to harass) Applebaum et al than you guys.

~~~
einhverfr
Likewise. I have some reservations about the ACLU (but nonetheless support
many areas of their work) but wholeheartedly support the ACLU.

Because I know folks will ask me, I think that antidiscrimination law and
things like first amendment rights so frequently conflict that I think there
is a real conflict of interest when an organization takes on both. The ACLU
does take on both, or they claim to, but this usually means pushing
antidiscrimination law over first amendment issues, which I think is a real
problem.

~~~
einhverfr
Ick. I meant I wholeheartedly support the EFF :-P

The ACLU's position in a lot of issues like Hosana Tabor v. EEOC was wrong (so
wrong that all 9 justices disagreed with the ACLU and stood up instead for
civil liberties), and they are for corporate free speech on political issues
(Citizens United) unless that is discriminatory (Willock Photography). And so
forth.

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hsmyers
Why is that when the government says "But, but computer!" judges abandon
common sense and case law. Even when the tables are turned there is still an
amazing amount of techno-ignorance in the process. Consider the long ago (tech
time anyway) prosecution of Microsoft. The idiots in charge completely ignored
their success with IBM and attacked via the browser vector. Andrew Schulman at
the time of pre-trial investigation had three books entitled Undocumented this
that and the other thing. Each should have been a successful blueprint in
terms of anti competitive behavior. Had this and the browser been part of
their war chest I think the result would have been considerably stronger (i.e.
the bust them apart goal would have been reached) with a appropriately more
useful public result. <end_of_slightly_off_topic_rant/>

~~~
betterunix
"Why is that when the government says "But, but computer!" judges abandon
common sense and case law"

I can think of a few reasons:

(1) My understanding of the legal theory is that computers are considered to
increase the capabilities of the population; hence, the government's power to
enforce the law must also be increased. Consider a car analogy: you must
display visible license plates to identify your vehicle whenever it is on the
road, yet that was never required for horses, carriages, bicycles, or any
previous mode of transportation. Likewise with computers: where previously you
might have been able to whisper a secret to someone a foot away from you, now
you can secretly communicate with someone across thousands of miles.

(2) It is assumed that the spirit of the law must be upheld. If the police are
legally allowed to wiretap a suspect as part of an investigation, then
encryption must not be allowed to get in the way of that. In other words,
technology must not defeat the law, even in spirit.

(3) Conservative views of technology: quite a few judges are still of the
opinion that personal computers are just fancy cable boxes, and so doing
anything that violates the will of service providers or governments is
"abuse." Entering a URL manually is considered to be vastly different from
writing a script to generate and fetch URLs automatically, even if there is no
technical difference. If you discover that your phone lets you make a free
long distance call when you whistle into it, you are a criminal; if you
discover that a web server will give you anyone's account number when you
enter the right URL, well, you're an even worse criminal.

(4) Ignorance of what is actually possible with computers. See e.g. how Kevin
Mitnick was treated when prosecutors claimed he could whistle into a phone
line and thus launch a nuclear strike.

~~~
ds9
Re (2), the idea that LE is entitled to have comms decrypted has never been
"the spirit of the law" until very recent legislation. In the days of
"alligator clip on the wire", the law allowed the police only to intercept
whatever the content was, in the form it was in - it did not compel the people
speaking to explain their "code words", or to speak in a language the officers
could understand.

It is precisely this fact which makes the current "going dark" argument an
example of overreaching and mendacious, bad-faith deceptive rhetoric:
encryption does not take away any powers the police formerly had; to the
contrary, the demand for decryption goes far beyond traditional wiretapping
principles.

~~~
betterunix
I am not saying that I _agree_ with the idea, but one could make an argument
that modern cryptography is different from speaking with code words, and that
the spirit of wiretapping laws extends to forced decryption. Using code words
only barely qualifies as "encryption" at all -- it is certainly not going to
meet basic semantic security definitions. Further, codewords are not something
is built into any communications equipment, not automated, and computed in
one's head -- quite different from TLS or OTR.

One could argue (as the DoJ does) that the spirit of wiretapping law is that
the police can, with the approval of a court, temporarily violate a specific
suspect's privacy in an electronic communication system. Hence if the system
automatically encrypt's the suspect's messages, the police should be able to
obtain plaintexts. Phone companies are not exempted from wiretapping
requirements when they multiplex phone calls, despite the fact that that is a
technical measure that (as a side effect) impedes wiretapping.

Again, this is not an argument I _agree_ with. For one, wiretapping laws do
not, as you pointed out, require a suspect to participate in any way in the
wiretapping. For another, there is a component of modern encryption that does
(or should) occur in a suspect's mind, much like the computation of code
words. It is also true that in general, wiretapping laws have expanded far
more rapidly than communications technologies have hampered police
investigations; the ability of the citizens to have a private conversation is
still "catching up."

~~~
ds9
Actually you are right and I overstated. This has been the distinction in the
recent laws, if the provider as opposed to the interlocutors can decrypt it is
required.

It is a challenge to build a system that encrypts as part of a service (rather
than users encrypting at the endpoints), yet prevents the service operater
being able to provide plaintext. In this situation the 5th amendment does not
avail, but I think there is a strong argument for the service provider having
an option to shut down (like Leveson/Lavabit) rather than cooperate - not on
the grounds Leveson argued, but rather by a right to avoid being used as an
instrument of fraud. But we digress from the main topic here.

------
thex86
Does the Fifth Amendment only apply to US citizens? The reason I ask is this:
if I am traveling to the US and the TSA asks me to decrypt my laptop or unlock
my phone, am I protected under the Fifth Amendment? Well, are US citizens
protected under it at the airport?

~~~
rayiner
There are two issues:

1) Does the Fifth Amendment apply?

2) Does the Fifth Amendment prohibit certain things?

The Fifth Amendment, like the others, generally applies to not just citizens,
but legal residents and others who are on U.S. soil.

The second issue is what's interesting here. The literal text of the Fifth
Amendment is:

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

Literally, it prohibits people from being forced to testify against themselves
in a criminal trial. The Supreme Court has ready it very broadly to prohibit
all sorts of other things, but one limit it has recognized is that it still
only applies to "testimonial" incrimination. Think: testifying on a witness
stand. Non-testimonial acts, like forcing someone to unlock a box, are not
covered.

Some courts have held, and the EFF argues, that providing an encryption key is
unlike providing the key for a box because it requires you to recount things
that are in your memory, and is therefore testimonial.

~~~
derekp7
A close analogy is: Even if you can be compelled to open a lock box, if it is
filled with papers that are in an unknown language, can you then be compelled
to translate those documents? That, to me, is the equivalent to providing a
decryption key.

~~~
rayiner
I don't think it's a great analogy, because translating documents requires a
wholly different level of mental involvement than simply recounting an
encryption key. Note that even fishing out and providing a regular key
requires some degree of mental involvement.

~~~
derekp7
What about providing information such as what language the document is written
in? Of course, the real equiv. is if the document is written in code, then can
you be required to reveal the secrets of the code?

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schoen
As an EFF staffer who worked on this, I want to mention that ACLU and ACLU of
Massachusetts deserve substantial credit for this brief.

------
dllthomas
If you can be compelled to provide a physical key, I don't see why a digital
key should be different. It's not "being a witness".

That said, I'm nonetheless happy the EFF is pushing at this - it's that kind
of pressure that makes sure reasonable calls are made in the corner cases.

~~~
revelation
Because you can't stick a digital key into random data and expect the result
to make any sense?

They _believe_ the random looking data is actually encrypted data, data they
_believe_ is relevant, and they _believe_ it can be decrypted by what they
_believe_ is a keyphrase they _believe_ you still remember or had in the first
place.

That is quite a big wager to throw someone in jail over, for a potentially
unlimited time.

(Now of course TrueCrypt containers and the like still have somewhat of a
recognizable header format - but theres no guarantee they contain _anything_ )

~~~
dllthomas
For the record, I absolutely _don 't_ think that indefinite detention is an
appropriate response.

~~~
dllthomas
Also, I don't think "block of random looking bits" should be considered prima-
facie evidence that it is encrypted data (by any particular key or even at
all). But if there _is_ strong evidence that key A was used to encrypt some
bits, and if there is strong evidence that person B has access to key A,
_then_ compelling production of that key is not absurd if done correctly.

------
hamburglar
I like this argument and agree with it, but it seems like the only real way to
truly protect yourself from being compelled to incriminate yourself is to use
deniable encryption. There will always be cases where a specific jurisdiction
makes an incorrect call that forces someone to give up their key or go to
jail. There needs to be a solution for that other than suing to put the
toothpaste back in the tube.

~~~
betterunix
Deniable encryption only works if either (a) everyone is using it or (b) there
is no way to tell if you are using it. I doubt you will ever see the former,
and that latter is pretty difficult -- even if such a scheme exists, you have
to also hide the deniable encryption software you are using i.e. it is the
classic warden problem.

To put it another way, let's say you are using Truecrypt, and the prosecution
can prove that you have incriminating documents on your laptop. You enter your
"innocent" passphrase and behold! No incriminating documents. I think the next
obvious move will be for the court to demand that you enter your _other_
passphrase, leaving you trying to prove that you really were not using the
distinguishing feature of Truecrypt.

A better solution, where applicable, is to destroy keys as quickly as you can.
Keep your keys on a smartcard, and self-destruct the card if you think you
will be arrested. You will deny yourself access to your files, but you will
also deny your adversary such access. The police might try to prove that you
destroyed evidence, but that is much harder to prove if your own procedure is
to periodically destroy your keys (and such a procedure can be done
individually without raising suspicion). Basically it all comes down to opsec
-- something the military has known for centuries.

~~~
hamburglar
I'm talking about a deniable encryption scheme such as rubberhose, where the
fact that you're using it is known, but it's impossible to tell whether you've
revealed all the hidden aspects or not. "Here's my key." "Well, you're using
deniable encryption; we need your other key." "Ok, here are my other two
keys."

But your hypothetical is also strange: "let's say ... the prosecution can
prove that you have incriminating documents on your laptop." If the
prosecution can prove that you have incriminating documents before you ever
provide the keys, you're already screwed.

~~~
betterunix
The thing is, if you are using deniable encryption and keep producing keys
that reveal innocent data, the government will just keep demanding keys from
you. Basically, you have to be able to last until they give up -- but the odds
are already against you on that.

As for the hypothetical scenario, that is actually something that happened in
real life:

[https://en.wikipedia.org/wiki/In_re_Boucher](https://en.wikipedia.org/wiki/In_re_Boucher)

In real life it is somewhat unusual for the government to grab random people
off the street and demand plaintexts. There is going to already be some kind
of evidence against you, something to make the government suspicious. Maybe
you attended an antiwar protest. Maybe you published a book about how to
molest children. Maybe you are connected to some kind of fraud. Maybe a cop
saw what appeared to be child pornography on your monitor. If the government
is asking for your passphrase, it is because they already expect to find
incriminating files; they will not just shrug and say, "We goofed!" when they
see a deniable encryption system producing innocent files.

~~~
hamburglar
While there is a sort of a "when do you stop asking for keys" problem, that
doesn't mean they will necessarily be able to compel you to provide that final
key you don't want them to have. The fact that they haven't gotten what
they're after yet is not evidence that you have more keys, because it's
indistinguishable from the case where you've simply already deleted the files.

I'm not expecting them to shrug and say "we goofed", I'm expecting them to
realize that with a well-designed deniable system, they can't tell the
difference between you being uncooperative and there being nothing
incriminating to find. If they can prove the files exist and you're refusing
to give them up, then that's something they can charge you with, but as I
indicated earlier, that's a different kettle of fish.

The big risk with deniable encryption, of course, is that the courts don't
really understand it well and you end up in a situation where they are
compelling you to provide information that _actually does not exist_ (they
think it's on a hidden aspect but they're wrong), and are willing to throw you
in jail for not producing it. This risk is what leads me to the conclusion
that the law _must_ acknowledge that compelling complete decryption of all
data is impossible.

~~~
betterunix
"The fact that they haven't gotten what they're after yet is not evidence that
you have more keys, because it's indistinguishable from the case where you've
simply already deleted the files."

Perhaps, but then why not just provide _no_ key at all and rely on the
semantic security of the cryptosystem? If you need to give the court a reason
why you are not producing the secret key, you can always claim to have
forgotten it. How does deniable encryption improve over that, if in the end it
comes down to indistinguishability?

"I'm expecting them to realize that with a well-designed deniable system, they
can't tell the difference between you being uncooperative and there being
nothing incriminating to find."

OK, but the same is true of non-deniable encryption when you say, "I forgot
the key!" Anything that might lead them to believe otherwise would be equally
applicable to deniable encryption.

To put it another way, what is the difference between saying, "I only have
_this_ key," and saying, "I cannot remember the key at all?" In either case,
you need to convince the police that there is no incriminating key they can
demand from you.

~~~
hamburglar
This is a good question, and the differences are pretty small. One difference,
although I'm not sure what the impact is of this difference, is that if you
say you've forgotten the key, that's an acknowledgement that there _is_ data
there to be discovered, just that you can't provide access to it. Does this
leave a door open to other efforts to decrypt it? I don't know.

------
eof
This is astoundingly obvious.

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

I could see compelled decryption being congruent with the constitution if the
decrypter is guaranteed immunity--ie, you can be compelled to be a witness
against _someone else_.

~~~
betterunix
Oh but the courts can find convenient interpretations of the wording. Like,
the act of entering a passphrase only proves that you know the passphrase, so
unless that knowledge is entered as evidence against you you have not actually
witnessed against yourself.

Really though, there is a deeper issue here. What if I legitimately forget my
passphrase? There is no real way to know whether or not I forgot it; will I be
held in contempt of court over my forgetfulness? Will I be accused of perjury?
Will I be imprisoned? Might the government accuse me of a crime, point to an
encrypted hard drive that I have not used in a year, and then throw me in
prison for failing to decrypt it?

~~~
stcredzero
_What if I legitimately forget my passphrase? There is no real way to know
whether or not I forgot it_

MRIs might change this.

~~~
jlgreco
I am not convinced that they could within any foreseeable future. They may be
able to prove that the knowledge is in there, or they may be able to prove
that _you think_ you are lying, but proving that you are _truly able merely
unwilling_ to actually vocalize that data is another matter entirely. Hell,
there are disorders that render you unable to vocalize your own name, despite
knowing full well what it is and _wanting_ to vocalize it.

Who is to say that _" It is on the tip of my tongue/fingers, but I can't seem
to say/type what it is."_ does not, under an MRI, appear to be _" He knows
what it is, but won't say/type it."_?

I'm sure you could find expert witnesses willing to be paid to argue either
way exactly what the MRI is or could be indicating.

~~~
stcredzero
_I am not convinced that they could within any foreseeable future...there are
disorders that render you unable to vocalize your own name_

Seems terribly shortsighted, given the points you are arguing from. If there
is a disorder, it seems quite likely that we would eventually be able to
detect the disorder.

~~~
jlgreco
Psychology today is still struggling with classifying disorders _by observable
symptoms_. We are a _long_ way off from being able to make a wide range of
conclusive _and specific_ diagnoses, particularly of subtle phenomenon. Hell,
it isn't even clear how many different phenomenon we are currently calling
"schizophrenia". We don't know the categories to put people into yet!

Regardless, I did say " _foreseeable_ future". There may be developments that
catch me by surprise, but going at the current rate and direction we are right
now, there is no way in hell MRIs will be able to satisfactorily contradict _"
I am unable to recall"_ in a courtroom anytime soon.

~~~
stcredzero
It seems out disagreement is just stems from different shades of
"foreseeable." To me, it's a foregone conclusion that scanning technology will
one day be able to verify claims that one is "unable to recall," though we
can't foresee exactly how and when this will happen.

------
walshemj
Hmm a case of the EFF wanting something to be true I feel

To use an analogy if you can be compelled to give up the keys to a physical
safe how can electronic keys be considered differently? To quote Spock "a
difference that makes no difference is no difference "

This is what the "man on the clapham omnibus" would think

------
jstalin
As screwed up as our government is, I'm still so thankful that we have a bill
of rights.

------
swalsh
If I built an encryption system, where entering a specific key initiated a
function that systematically destroyed all data on the drive.... could I be
accused of tampering with evidence?

~~~
grecy
...and then don't enter the "destruct" key yourself, give it to them so they
enter it and destroy the data.

~~~
BlackDeath3
Or how about a sort of dead-man's switch? Is _that_ tampering? Everything you
did was put into place before you got into trouble. Can you be charged with
"pre-tampering" of evidence? Or how about "not untampering" of evidence?

------
vaadu
When did the 5th amendment become a privilege? Last I saw it was part of the
Bill of 'Rights'.

