Not sure what the man's crime is here. Does he even remember his keys after sixteen months in the slammer? I don't even remember my Gmail password after 16 days of vacation. Basically, like the article says, it like not opening a safe for an inquisitor: you are damned if you do, you are damned if you don't. Encryption is nothing new people, you are just putting your data in a safe.
We have a tendency to misconstrue, willfully misinterpret, or altogether ignore the law when it comes to prosecuting individuals who we believe to be standing on much lower moral ground. We do so because we want so badly to punish the accused that we are willing to reduce or eliminate greater good that some privacy laws are aiming to provide (i.e. Trumps silly travel ban which is based on his hatred of Muslims built upon imaginary news stories and personal exaggerations of particular recent events -- all laws out the window)
> Encryption is nothing new people, you are just putting your data in a safe.
Well, you could also be held indefinitely for refusing to provide the combination for a safe. If there were safes that could keep them out indefinitely, anyway.
I suspect that they nailed him using ICAC's Black Ice app. It's a hacked version of the Freenet client that logs peer IPs, and tracks hashes that they handle. So his mistake was assuming that deniability was adequate, and failing to hit Freenet via Tor.
I don't care what the charge is, if the government can not prove their case without compelling the person to testify / provide evidence against himself the judge needs to throw that case out. This is terrifying that anyone could be jailed for using what anyone would consider their 5th amendment right.
He's innocent in court (and my non-lawyerly (aka worthless) sense says the fifth amendment favors him).
But we're not a court, and our standard for speech shouldn't be "beyond a reasonable doubt". The parent poster was right. His failing was looking at child pornography.
What should our standard be? Being accused equals being guilty?
Tread carefully. The protections you give others are the protections you'll enjoy yourself if needed. And hoping you'll never need them is a very shortsighted strategy.
But we're not a court, and our standard for speech shouldn't be "beyond a reasonable doubt". The parent poster was right. His failing was looking at child pornography.
That's what you think until you're falsely accused of such a crime...
For everyone who's poo-poohing this, go read the government's brief (https://arstechnica.com/wp-content/uploads/2017/02/fedsrawls...). There are logs that show him visiting child pornography groups, there are recorded requests of him accessing files whose hashes matched child pornography, his sister says he showed her child porn and told his entire family that he had a problem with child pornography, and he admitted that he may have been emailed child pornography.
Now, replace child pornography with any other thing. Would you question me saying that he'd been downloading that thing?
There's a procedure though that we use to determine the likelihood of someone's guilt, based on evidence and legal arguments. Would you like to hear about it?
I think it's legitimate to say, in a discussion like this one where we're not dealing with punishment, that we should hold to a weaker standard (preponderance of evidence?) than should a criminal court.
That said, as far as I'm aware the only evidence we've seen is that he's been accused of the crime. I don't what portion of accusations are false (or even a proxy like conviction rate in comparable situations).
That might seem reasonable at first glance, but it tends to turn into a witch hunt — especially with modern day communication channels.
That is, you are effectively dealing with punishment (by treating a suspect as a criminal and tarnishing their reputation before being convicted) by not applying the same rigour as the courts.
I agree that social condemnation - especially mass condemnation - is a form of punishment, and should be treated with corresponding care. But I reject the attempt to extend that to all related reasoning - it is specifically a question of requiring a high confidence for punishment.
This is not an activity I want to engage in or even associate with people who do, but a nonviolent private activity is not a reason to violently persecute someone, especially to this degree.
You can make the same argument for the adult porn industry, and that leads to one of two conclusions:
- That the viewer of adult porn shouldn't be prosecuted for viewing porn.
or
- That there is a societal / governmental acceptance of the exploitation of men and women, as long as they are adults.
The easy argument out of this hypocrisy is to claim that while children can never consent, adults can, but then that opens the can of worms of whether they're "consenting" under coercion, like under threat of not getting hired again to do work or if they're enslaved, and the answer to that is that it depends on the case.
At this point it turns political, with one side generalizing that most do consent, and another side also generalizing that most do not consent, and reaching an agreement is impossible because there is a half-truth to both sides, and after a lot of heated arguments, people get worn out, and nothing gets resolved.
So instead I'm just going to direct people to read up on the topic of victimology, which is a sub-genre of criminology, specifically how it affects human traffic (which are >90% women, and has a total volume of enslaved people higher than it was when slavery was legal) and get informed and then make up their own mind about it without bothering others.
Or you can make the same argument for the diamond industry. Buying a diamond you are committing a crime against humanity, as you are supporting war, slavery and a whole lot of violent stuff somewhere in Africa.
And that is the reason you can never have a rational discussion about the subject. No matter how strong the arguments you present, the other side can always say "b... but... but think about the terrorists and the paedophiles!" and if you reply you get called a sympathiser - for having a rational discussion.
Or 16, 15, 19xx, 18xx. Principled defense of something seen as morally wrong was always fraught with "so, you defend it, so, you must like it. Probably, you even do it, don't you?"
It's one of the first strategies in the book of shutting down your opposition and probably was one of the first things people tried the moment discussions started.
This is a tenuous argument at best, even more so considering the protocol in question is freenet. Sure it's possible to force a commercial model onto any system, but I'd think freenet would be an especially terrible way to monetize. (And "industry" - seriously??)
Furthermore, there is presumably enough existing child pornography out there to satiate any viewer for their entire life. Perhaps increasing access to it is the way to discourage more being made! At any rate, paying for it could still be a crime, as opposed to the insanity of strict liability for bitstring possession.
Supporting or undermining it by unpaid distribution of its disgusting output material? If he was directly supporting it, he would be already convicted based on tracing the payments, I guess.
And if obtaining and distributing the output material of a content industry without payment is supporting the industry, let that be put in writing…
If I see proof (undoctored video) of a dog being beheaded (a child being sexually abused) I think I'm safe to conclude that a dog was killed (a child was raped).
If then that video was sold (or distributed in any way) to fetishists of dog beheading I could conclude that there is some kind of commercial (distribution) process going on here.
Note for children: I'm using parenthesis in a way that shouldn't be done.
My point was that the distribution of the material, especially free of charge does not necessarily encourage further abuse, nor does its possession. I do not know, though I admit that I suspect that the abuse would be encouraged because it is being paid for.
Edit: In my opinion, the following offences ought to exist with relation to child pornography and abuse:
(1) Child abuse is an offence as it currently stands, or with revised ages of consent to better reflect philosophical, scientific and psychological evidence
(2) The act of recording of abuse with majority or express intention of furnishing the material for charge or otherwise in order finance or encourage continuing abuse is an offence
I think the second part needs some elaboration. I don't think that recording a certain act taking place ought to be illegal, nor I do I think it ought to be illegal to share that material with others. However this presents a dilemma: the abuse may be encouraged by the fact that the material is being sold or even enjoyed. If this encouragement to continue abuse can indeed be proven in a court of law, by some standard deemed appropriate (either the standard 'beyond a reasonable doubt' or the more strict 'balance of probabilities') then the act of making the recording and the act of furnishing the recording, I believe, ought to be an offence.
On the other hand, if the recordings are made merely to provide the enjoyment of others, and not for the purpose of encouraging abuse, I do not think there should be an offence.
At the risk of over-emphasising the point:
A child abuser may be encouraged by (i) money (ii) the thought that people are watching the recording (there may be further motivations).
If it can be proven that abuse continued and the abuse was contingent on one or more of these factors, there is sufficient reason to believe that the intent of the recordings aided another crime, which I think may be sufficient to culminate in an offence.
Well, enjo-kōsai is merely controversial in Japan. But bare female skin is illegal in Saudi Arabia.[0] De gustibus non est disputandum. What's key is mindfulness.
Here (Sydney Australia) the penalty for refusing a roadside alcohol test is the same as the top range blood alcohol penalty. So you can refuse a test, and they'll penalise you assuming the worst-case result you could have produced.
I'm guessing this guy is in a quite perplexing quandary - he's betting on whether they'll keep him in jail for as long for refusing to decrypt the drives as they would for the crimes that decrypting the drives expose?
(At least I _hope_ that's his quandary - I sincerely hope the reality isn't that he's genuinely forgotten the passwords, and when the FBI/NSA _finally_ bruteforce it, they end up with baby photos, teenaged angst poetry, and a few bittorrented Hollywood movies... That does, at least, seem quite unlikely...)
If he was using Freenet, there's no doubt that his node handled chunks of CP files, and that at least some of those chunks remain on the drive. Let's say that he never viewed any CP. Even then, can he be sure that investigators won't discover evidence that could be spun to demonstrate that he did view CP?
But LEA are selecting nodes based on the hashes of those fragments. Many of them won't have cached CP fragments, but merely relayed them. But if his node did, prosecutors could argue that they've identified CP on his computer based on hashes, and have experts testify about reliability, etc. How many jurors would understand Freenet design?
How can they prove he is in contempt of the court? Someone who forgot the password would very well be found in contempt of the court, despite not doing anything wrong. How can you jail someone for being in contempt of the court when there is no proof that he has the password?
In fact, it seems dangerous for the judge to be able to jail anyone without a jury verdict. It seems to bypass legal protections.
The standard for US criminal law is "proof beyond a reasonable doubt". I think "100% proof" is a close enough summary of that phrase... If the proof doesn't 100% convince the jury, then reasonable doubt still exists and prosecution should fail.
Beyond reasonable doubt can admit that doubt does exist, it's just not reasonable to entertain it. 100% proof strongly implies that there is no doubt at all.
I don't think there's a difference. For instance, let's say we have a video of little Timmy shoplifting a candy bar. Clear face shot, maybe the video even has sound and there's a vocal-print match. Pretty slam-dunk case, right? Not much room for reasonable doubt there.
Oh, but you see, little Timmy was actually being telepathically controlled by a diabetic alien about to pass out from hypoglycemia, who had him steal the candy bar. Can you prove this was not the case?
This is what reasonable doubt protects against. There will always be the ability to create a (probably fanciful) scenario in which the defendant is not guilty. An unreasonable scenario, one might even say. Being able to convince the jury beyond reasonable doubt is as close to 100% proof as you are reasonably going to ever get.
> Beyond "the shadow of a doubt" is sometimes used interchangeably with beyond reasonable doubt, but this extends beyond the latter, to the extent that it may be considered an impossible standard. The term "reasonable doubt" is therefore used. [Emphasis mine]
I understood that reference to "Impossible standard" to mean from a jurisprudence perspective.
If you want to insist that "100% proof" and reasonable doubt are the same, that's of course your choice. I think you'll find that people will tend to disagree with you.
Fair enough. I think anything beyond this point dives pretty fast into a philosophical debate on "knowability", which I don't think either of us are actually interested in. Cheers.
Indeed! I'm sure there's a lot of great judicial literature on the topic if you're interested in diving further. My armchair is pretty comfy though, and I think I'm likely to doze off before getting too deep into it. :)
And lets face it, the NSA claim - and win in court with this claim - that "collecting and storing" personal communications doesn't count as surveillance, until a human queries the database and reads from the collected interceptions.
While a personal hard drive full of child porn is unlikely to be "innocently" explained away quite that easily, I wonder if owners of, say, usenet binary hosting newsservers ever need to claim that defence?
Bogus defense IMHO. Acquiring the ability to query a database is enough to constitute surveillance. I wonder if my land lord could use the same logic to legally record me in the shower.
We have to understand that, much like it's a military's responsibility (and desire) to go to war, it is the goal of spy agencies to gather all the intelligence it possible can. In both cases it is up to law making bodies comprised of "the people" to check these agencies' ambitions.
I completely agree with you. It baffles me that anybody can stand up in front of their peers and claim "bulk collection" doesn't violate your privacy until/unless some human ever reads the data you've collected, and it's beyond parody that a judge in a court agreed with this example of mental gymnastics...
>until a human queries the database and reads from the collected interceptions.
Didn't it go further than this? Just searching the data for some signal wasn't a "search" because a machine did it, it was only a "search" if you were a match and if you were a match then they had "probable cause" for the search.
Not entirely sure how accurate that is but FWIW it seemed like that was the accepted reading of the twisted reasoning on HN back when that came out.
It's actually pretty clear that he did if you look at pages 3–10 of the government brief. The government just doesn't know exactly what's on the encrypted external hard drives, but they suspect it's a lot more child pornography, which could bolster the case against him: https://arstechnica.com/wp-content/uploads/2017/02/fedsrawls...
His crime is disobeying a court order, which is a crime that you can go to jail for. Just like if you had the key to a safe, and the court orders you to open the safe, you would go to jail if you refuse to do so. If he forgot the keys he could have told the court that and the court would evaluate his credibility.
*edited changed from key to combination because combination locks are protected by the 5th amendment and keys are not.
The courts can compel you to turn over something that you have. Something that you know is protected by the fifth amendment, in particular for combination locks.
A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe -- by word or deed.
Per my other reply, the case he was dissenting about was not about being compelled to provide the combination for a lock. The dissent simply contained a supreme court judge's opinion regarding combination locks. If you can find actual caselaw for combination locks, I'll take it. Otherwise, I'll take the supreme court justice's opinion.
The other eight unanimously agreed with him, they disagreed that the particular case was analogous to a combination, the other justices were of the opinion that it was really a "key".
great, now look up what "dissent" means. Dissent is legal mumbo jumbo for "stuff that ain't law."
When you have a panel of judges, we go with the decision of the majority of judges. The decision of the minority of the judges is still published under the heading "dissent." It isn't the ruling and it doesn't affect the law, but it's published just to note that they disagreed and their reasons.
There are some 5th amendment encryption cases where there is a question about whether the government has shown that there is a reasonable certainty that the files contain the evidence being sought. In those cases the 5th amendment would act to protect the info. That doesn't seem to be the case here and in that case, it seems like clear law that he would have to give up the data.
I am well aware of what "dissent" means. Fortunately, this is a supreme court justice talking about a case that was not about a combination lock. Unless you can show something that says that you can be compelled to open a combination lock (I couldn't), I'll take the supreme court justice's word for it.
You're right, combination locks are protected by 5th amendment as Testimonial evidence. I was wrong in my original post, however this doesn't apply to computer encryptions which the court seems to treat more like keys to a safe which are not protected, I'll correct my post accordingly thanks.
You're combination is protected under the fifth, but you can be compelled to unlock your computer using that combination, which is exactly what the judge is ordering in this particular case.
And don't complain too me that it's essentially the same thing; this is the judge's reasoning, not mine.
> His crime is disobeying a court order, which is a crime that you can go to jail for.
Sure, but isn't the question whether he should go to jail indefinitely? If defying a court order is a crime, then perhaps it should have a well defined jail term.
What about the 5th amendment? I think we can agree without too much of a stretch that our storage data is just an extension of our mind (verily, suppose someone had illegal data stored on their drive and an idedic memory? Destroying the data on the hard drive wouldn't destroy the data in their mind), and thus just as protected by our right not to testify against ourself?
His crime is disobeying a court order, which is a crime that you can go to jail for.
That's not his crime, or as the subtitle below the story's headline states: "He's not charged with a crime." He's held in custody, not serving a sentence for a crime of which he has been convicted. He has never been convicted of any crime by any jury. That's a huge difference, both legally and morally.
> Encryption is nothing new people, you are just putting your data in a safe.
I know this is an old argument, but what if I put the contents in a paper shredder, in the safe? It's still the data, it's just that it went through the shredder. Why is ok for the government to compel you to change the state of the data from encrypted to unencrypted? They couldn't compel Apple write software to decrypt a phone. Why can they compel me to write an encryption key to decrypt data.
Discloser all of my data is encrypted, and if the government asked I would really be torn about giving them keys.
Or, what if you had a paper in a safe that was written in an invented language? They may be able to compel you to open the safe (i.e., provide a BIOS password), but can they compel you to teach them how to read that invented language?
That's actually a much better example. Seriously, can they? It seems ridiculous, but then compelling you to decrypt anything is obviously ridiculous as well. Maybe you are reading and writing this data as is, who is to say?
I guess, the real reason why this question stands is that nobody gives a fuck about logic and solid law, someone (obviously) just wants it to be a crime and it is easy to sway public opinion in a way that allows for it to account as one. Which, again, reminds us that the current state of the law is that it is rotten by default.
He didn't commit a crime. He is being held in jail for contempt of court. This is how the system works. This is no different than if a judge demanded that you turn over any other form of evidence - it should not be so shocking that you can be held in contempt for refusing to obey a court order.
It is bad, however, that he is being let to rot indefinitely. That is the problem here - not that he was jailed for contempt in the first place.
I would dare say that the really bad part is that there's no way to know for sure if he can even comply with that order. As I understand, he claims that he has forgotten the password. Obviously, it's a convenient excuse, but it's not something utterly improbable. What if he actually did forget the password? Why is the word of the judge alone sufficient to assume otherwise? There seems to be an obvious lack of checks here.
> Why is the word of the judge alone sufficient to assume otherwise? There seems to be an obvious lack of checks here.
Because the judge's finding is based on evidence – see my other comment[1]. The judicial power to make findings of fact is checked by the appeal process, which is now underway.
> He didn't commit a crime. He is being held in jail for contempt of court.
The problem is that contempt isn't classified as a crime and so it doesn't have a fixed term. There are moral hazards with having fixed terms like this, but the moral hazards of not having them, like this case, seem worse.
The difference is that the authorities can crack open a safe without the suspect cooperating. But it's virtually impossible to decrypt something without the receiving the key.
We have a tendency to misconstrue, willfully misinterpret, or altogether ignore the law when it comes to prosecuting individuals who we believe to be standing on much lower moral ground. We do so because we want so badly to punish the accused that we are willing to reduce or eliminate greater good that some privacy laws are aiming to provide (i.e. Trumps silly travel ban which is based on his hatred of Muslims built upon imaginary news stories and personal exaggerations of particular recent events -- all laws out the window)