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> The argument made in the article is that it's a "foregone conclusion" that there's child porn on the drives, so decrypting them isn't self-incriminating because they already know what's on the drive.

The immediate thought that comes to my head when they say this is: Then whats the problem? You can prove it, so why do you need more proof? Unless your possibly maybe your case isn't rock solid or you want to find more crimes.




Similarly, if the police have a reasonable suspicion that there are illegal materials in your home, they should never be allowed to enter and search it against your will. Either they have enough evidence to charge you or they don't, right? So why bother searching? It doesn't matter if you have a nuclear weapon in your basement, if you say no they aren't allowed to come in and check/collect evidence that makes them certain no matter what the Geiger counter outside says.

Your reasoning invalidates all searches, all warrants, and it's everywhere in this thread, it's insane.

I'm all for security, privacy, encryption, Tor, but if the police have a strong enough reason to think I'm committing a horrible crime, and have convinced a judge to sign off on it, then yeah absolutely they should be allowed to search my computer. I don't get to say "Joke's on you g-man, we both know I'm a criminal and the evidence is right here and I can get into it, but I won't let you in until you've cracked my secret code!" The alternative is for them to just always assume encryption/Tor == criminal. The point is they can search /when they have a very good, explicit reason given to a judge/, not go on fishing expeditions or passively collect everything. You probably will lose your privacy for a little while if you're a reasonable target in a serious police investigation, that's always been the case, and it always will be.


It's a bad analogy, the police don't need your permission to gain access to your home.

It'd be akin to the police coming across a written document in rot13 and jailing you indefinitely until you show them how to decrypt it.

What if it turns out to be a grocery list and you used rot13 just as a matter of course? You went to jail over a grocery list?

I don't think you can compare searching a house to forcing the decrypting of the hard drive.

I run my own XMPP server to keep in contact with a few people (1 friend in china, and my gf during the day). I absolutely encrypt all of it, you're telling me it's ok for them to jail me indefinitely because they believe I've said something in the logs that I shouldn't have.

And that's bullshit, there are legitimate reasons why people encrypt things.


The fact that police can't access your data without your permission is a technical reason, not a legal reason. Warrants say the police can search your home. Everything in your home. The data on the machines in your home. If a police officer knocks on your door and presents a valid warrant and you say "good luck, I've booby trapped my home as a fortress with shotguns and explosives and I refuse to disable them" you will be locked in jail until you do. Police don't have to deal with your bullshit when a judge orders you to do something and you refuse to comply. They just lock you in jail until you do what they say.

And no, none of your examples are appropriate. If the police could prove you had a grocery list had all of the items used in a crime and could tie you to it, went to a judge, got a warrant, and ordered you to turn over that list, you'd have to do it. If it's encrypted in some scheme you have to show them the real data. It's not the cops' job to work their way around every weird little obstacle you put in their way when they have a lawful order requiring you to hand over information.

In your scenario, if they had a warrant for your grocery list or XMPP server data, you wouldn't be "jailed indefinitely", you'd be jailed until you complied with a lawful order to turn over the data you possess. I don't know where you got the idea you'd be jailed indefinitely because of the content of the chats, that one came out of nowhere. If they discuss crimes you've committed you'd be jailed for those crimes, not indefinitely. After you turn over the logs. If you refuse you're breaking the law. If you don't have access, you can go ahead and try to prove that to the judge, or convince the judge you forgot your password. But the police can provide evidence to suggest you DO have access, you are just willfully refusing to give it up. Like, e.g. logs of you accessing it successfully, recently.

Yes there are legitimate reasons people encrypt things. I encrypt everything, all the time, just for the sake of doing it. I use Tor for my fairly mundane browsing all the time because I value my privacy.

But encryption does not mean "I never have to give anything to the authorities, under any circumstances, no matter what, and there can't ever be any consequences for me if I refuse when they go through proper channels and ask". Encryption does not mean you don't have to comply with the law.


> The fact that police can't access your data without your permission is a technical reason, not a legal reason. Warrants say the police can search your home. Everything in your home. The data on the machines in your home. If a police officer knocks on your door and presents a valid warrant and you say "good luck, I've booby trapped my home as a fortress with shotguns and explosives and I refuse to disable them" you will be locked in jail until you do. Police don't have to deal with your bullshit when a judge orders you to do something and you refuse to comply. They just lock you in jail until you do what they say.

When you start using such bullshit, outlandish arguments, you've lost the point.

> In your scenario, if they had a warrant for your grocery list or XMPP server data, you wouldn't be "jailed indefinitely", you'd be jailed until you complied with a lawful order to turn over the data you possess.

They have the data. What they don't have is an ability to interpret the data, but they most definitely have been given the data.

If that's really your measuring stick, then they need to let this guy go because they have the data in their possession.

What next, we're going to jail someone indefinitely (oh I'm sorry, not indefinitely, just "until they comply"...) because they refuse to read off their grocery list, which they wrote down in french because the police can't find someone else to read it for them?

no, fuck that, it's all splitting hairs.

"We don't want him to give us the password, just force him to unlock it for us, so it's totally not the same thing!".

Right...

Oh also.... you're wrong about the warrant point.

http://criminal-law.freeadvice.com/criminal-law/arrests_and_...

> Actually, the police might not be able to search anywhere just because they have a search warrant, there is a requirement that a warrant describe specifically the place to be searched and the items to be seized. Although it is possible that a warrant will give police a general license to search anywhere in a home, it is also possible that the search might be limited to specific areas in the home.

Maybe you live in a different country, but in the US it's typically understood that a warrant is meant to be specific to avoid the issue with police getting a warrant to look for a stolen bike and going through your toilet looking for hidden drugs.


I would suspect that the footage itself can be very valuable in terms of further investigations, so they're pushing for it because it will benefit them in future. The man will end up in prison anyway, so it's not like the law enforcement has something to lose.


No, that means that he's jailed indefinitely for possibly imaginary reasons that have nothing to do with the case at hand.

> The man will end up in prison anyway

But may actually end up longer in prison for contempt of court.


yeah, if it's a foregone conclusion, then why isn't the trial over and time being served?


Where's the mandatory minimums for possession of child porngraphy? The zero tolerance? Our prisons fill with drug offenders, yet we give sex offenders a scarlet letter + probation?


I don't think drug offenders should be put in prison since it's a victimless crime. I think child porno while much more serious does invoke some of that chain of reasoning.

To me there is a big difference between a guy who found some on the internet and someone who produces or pays for it.

I would be wary of putting in minimum sentencing for such crimes unless it was only targeted towards those producing/paying as you can reach murky area's. Two i can think of off the top of my head would be finding images inside someone's browser cache who browses a site like 4chan where people will post it randomly.

That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn?


There was a sex offender who wrote on paper fictional stories of child sex and he was put back into jail for a violation of his parole (for writing it, never shared it).

If you have child pornography the law considers it the same as taking the photo and you can be sued civilly by the victims.

People love it when lawmakers make more laws.


Remember that parolees are still under sentence. There are almost always restrictions on parolees that go beyond those on the general population - that is the whole point of the parole system, you agree to live under sometimes onerous restrictions in return for being allowed out before your sentence is up.


> That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn?

The answers to these questions are obvious: no and no.

If the answers are any different or short of being absolute, then that's a clear hole in the first amendment.


> The answers to these questions are obvious: no and no.

Tell that to Chris Handley [1]. He imported a pornographic comic book from Japan, a postal inspector got his panties in a bunch over it, and a prosecutor pushed for 15 years in prison and life as a sex offender unless he plead guilty.

Knowing he'd probably lose in front of a jury of his peers [2], and being blackmailed with the threat of 15 years, he took a plea for six months in prison. Wasn't even afforded the right to a fair trial.

Oh, and it's not just pictures, either. Textual, fictional stories can be "obscene" as well. It is possible to write a fake story in a Hacker News comment that can get you 15 years in federal prison in the US.

[1] http://cbldf.org/about-us/case-files/cbldf-case-files/handle...

[2] it's deemed "obscene", which is a magic "get out of Free Speech free" card, so it falls under the Miller Test. You could get a jury in a very deep red county to find two fully-clothed males kissing as "obscene" if you wanted. "Obscenity" is the thing that needs free speech protections the most.


> "Obscenity" is the thing that needs free speech protections the most.

Agreed.

I'm even of the mind that mere possession of any piece of media cannot be properly regarded as criminal, precisely because it interferes with the far more important right to free speech.

It seems to me that prohibiting the creation or sale of child porn is more appropriate.


In an ideal world, I want possession of real CP to be a crime ... that is, if it could stop there. I would be willing to accept that small bit of cognitive dissonance / hypocrisy. I'm very sympathetic to the victims of abuse having their images out there being sold and traded online.

But then you have cases like Handley where cartoons are criminalized (which I consider to be a thought crime), and cases like this story where it's used to basically eviscerate the fifth amendment ... and it really makes it clear: you cannot have exceptions to free speech, or it will continue to grow and gut everything else. It's not a "slippery slope" argument ... the slope has already happened -- we're seeing it right now. An appeals court just said you can rot in jail for the rest of your life if you forget your password. And they're going to get away with it because of the horrific spectre of CP ( parodied well here: https://www.youtube.com/watch?v=sdu4wSBZqMM )

As much as I abhor the content, I really believe prosecutors should be going after the producers, the sellers, the people collecting ad revenue off of hosting this stuff, and of course, the actual abusers themselves.

I'd like to see the people with paraphilias they didn't ask for have access to proper counseling, access to anti-androgens, etc.

But we don't live in a country that wants to help people. We live in one that wants to punish people -- even if that results in more victims.


>In an ideal world, I want possession of real CP to be a crime ... that is, if it could stop there.

I partially disagree with this. I think it should only be a problem if it's actually real, and can be proven to be, and thus can be proven to have an actual victim. And that victim needs to actually be a child.

In today's age of Photoshop and life-like realistic rendering programs, it's entirely possible to create stuff that looks real, and really isn't. It's also possible for models/actors to look less than 18, while not really being that young. How do you tell for sure that a person in an image is 17 years and 364 days, and not 18 years? Pretty soon, the rendering technology will be so realistic you'll be able to create movies with fake humans that look entirely real. So if someone buys this software and makes some naughty stuff with it, why should they get in horrible trouble and spend decades in prison, when someone else can buy the same software, buy the same digital assets of child models (which aren't really real children, just fake but realistic looking children), and then make movies of these "kids" being slaughtered by dinosaurs or mowed down with machine guns or something, and that's perfectly OK?

The bottom line is: victimizing innocent people should absolutely be illegal and punished. Anything which doesn't victimize an actual person should not.


years ago I read an article by Bruce Schneider in which he said he doesn't put a password on his home wifi. Anyone who wants to connect to it can.

His argument was that if someone downloaded illegal materials like cp and his network was password protected, they would argue that it had to be him (when we know this isn't even remotely true as software people).

The thing is, I kind of dismissed it and then several years after reading that I came across an article that just floored me. A cop was accused of accessing cp evidence repeatedly (presumably for himself). The article quoted the chief of police as having said "we know it was him because he used his password to log in and it's IMPOSSIBLE for anyone else to have gotten into it".

I've emphasized the word impossible.

I went home that night and opened up my home wifi and I've ran it that way ever since. The idea that a police chief would believe it's impossible for anyone else to get into an account because it's password protected is about some of the scariest shit I can imagine.

And what's scarier in my mind, is how easily people are swayed. Look at how many people are arguing that it's ok to jail this guy indefinitely for refusing to give the police a password. And they BUY the argument that because the police are only asking him to perform an action (enter the password) and not actually give them the password it somehow changes anything instead of it being bullshit hairsplitting by officials.

I'm not really a tin-foil hat sort of person, but the people who can buy that without blinking are a part of the reason why we can't have things like free speech, only acceptable speech.


> parodied well here: https://www.youtube.com/watch?v=sdu4wSBZqMM

You may enjoy Chris Morris in this Brass Eye special "Paedogheddon":

https://www.youtube.com/watch?v=RcU7FaEEzNU

(if you enjoy absurdism and black comedy -- I find absurdism to be an especially good fit for satirizing the Kafkaesque)


> I'm even of the mind that mere possession of any piece of media cannot be properly regarded as criminal, precisely because it interferes with the far more important right to free speech.

While I agree in principle with the sentiment, by calling it "piece of media", you presume it to be something inert.

Stepping outside the context of obscenity for a bit, code is data and data is code. It used to be (50-100y ago) a reasonable valid argument that any media is "just words" or images, unable to hurt anyone/thing unless interpreted and acted upon by human volition. However in today's information technology-enabled society, we have automated systems and machines that will consume the data on a piece of media, and automatically perform real-world actions that have large consequences and may hurt people.

Weaponized exploit code (etc) can exist on a piece of media, and you can imagine how a rule that "mere possession of any piece of media cannot be properly regarded as criminal" can somehow always be wrangled into a loophole that abuses this rule. Information is a very weird and fluid beast, just look at the oddities around "illegal primes" or "coloured bits", to see where computational science and law collide.

I believe that our old intuitions about the fundamental nature of "information" are being challenged in a way. I don't have solutions or answers, either. I want the freedom too, but saying it's "just information" on a piece of media is a bit too quick.


"18 U.S. Code ยง 1466A - Obscene visual representations of the sexual abuse of children

Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that (1) (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene (...) or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction. It is not a required element of any offense under this section that the minor depicted actually exist."


> (B) is obscene

Those two words are hiding a lot. For example, it's probably not obscene in Oregon, since part of the Miller test defers to state law and we have a stronger state equivalent of the 1st amendment in our state constitution that would allow it.

And if you wrapped it in a story(like a manga or comic), it would be easier to argue that it has literary or artistic merit. Though, a "states' rights" argument would probably be more likely to succeed.


My comment wasn't meant to speak to the test of the federal register, under which a huge part of the everyday lives of Americans are federally prohibited.

I was more speaking to the question, "is it a crime?" IE, is it a crime in any sort of common-law sense and the proper purview of a government in a functionally free society.

In that sense, I do not believe that the wholesale fabrication of any form of media is a crime.


In Australia, cartoon child porn is also illegal.


In fact, IIRC even actual porn containing only provably adult actors is illegal if a judge decides it looks like someone might be underage.


I remember reading about a case where a porn star actually showed up to a trial of her own volition and showed the judge her license to prove she was over 18 when she did the film.

Had she not responded when the guys lawyers contacted her, the accused would've gone to jail for child porn.

That's how insane and scary these laws are. I'm all for coming down hard on someone for having cp, but it wasn't cp, just a young looking actress.


Keep in mind that a 17 year old taking a nude picture of themself is in possession of child pornography. Do you want a harsh minimum sentence for that?


You gotta cut the government some slack here, they have contracts with private prison providers and quotas to fulfill. Can't have compassion and reason get in the way of that.

Also think of the children.


Times are moving faster, you have to adapt. Efficiency is trump. Children are no exception here. You gotta see that there is just no time for things like 'being a child'.


With private prisons only holding about 8.4%[1] the total state/federal inmates, do you perhaps mean prison guard unions?

[1]http://www.salon.com/2016/08/24/private-prisons-are-not-the-...


Try them as an adult?


I don't understand.


A minor possessing selfies of a nude love relation should clearly be tried as an adult. For maximum ironic force.


Also keep in mind that urinating on a wall in front of a police officer can get you "sex offender" status.


The problem has to do with precedent. If the prosecutors give up on this issue, then future defendants can cite this case in their defense.




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