Computers, Privacy & the Constitution

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Forced Decryption and the 5th Amendment

On February 23, 2012, the Wall Street Journal and Volokh Conspiracy reported that the Court of Appeals for the Eleventh Circuit decided that forcing a suspect to decrypt and provide a hard drive when the government did not already know what it contained violates the suspect’s Fifth Amendment protection against self-incrimination. While most of the Court’s analysis seems correct, I have a few problems with some parts.


VictorAFirstPaper 7 - 12 May 2013 - Main.EbenMoglen
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 While the Court’s analysis mostly seems correct, I have a few problems. First, regarding the distinction between a physical and a testimonial act, the Court lists some implied factual statements that determine whether Doe’s decryption and production of the drives would be testimonial. The Court states that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can be classified as using one’s mind, but the first factor should not be involved if Doe were to decrypt and produce the drives. By producing the drives, Doe would be showing that he had possession, control, and access to the drives and that he had the ability to decrypt the files. Regarding the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government just needs the decryption passwords so it can access the encrypted partitions inside the drives.
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I don't think this point is correct. His production doesn't prove to your satisfaction that he knows the location of incriminating files. It is certainly evidence on that subject, however, and he has "used his mind," if you really need to apply such a ridiculous test, to produce it. I don't know why you're picking this nit in the first place, but I don't think you're picking it correctly.

 Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is [like] requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id. However, the focus should simply be on whether implied factual statements are involved. A key vs. combination analogy seems to wrongly focus on a physical production of a key as opposed to a mental production of a combination, and the involvement of implied factual statements should be the primary factor.
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Only if you're prepared to give up on all the law about surrendering the keys, which also involves implied factual admissions.

 Under this proposal, if compelling the production of a key or combination to a safe ends up involving implied factual statements, then such an act of production would be testimonial. In this case, the key factor should be whether the government actually knows that Doe has “knowledge of the combination”—whether Doe has the decryption passwords for the drives. If the government is unsure whether the suspect has knowledge of the combination, then the act of production should qualify as a testimonial act because such an act would be accompanied by the implied factual statement that the suspect knew the combination (e.g., a decryption password). However, if the government knows that the suspect knows the combination, then producing the combination should qualify as a physical act. This would be functionally similar to asking a suspect to produce a key; there is no implied factual statement.

Under this focus, then, it is the fact that the government is unsure whether Doe has “the combination to the safe” that makes Doe’s decryption and production testimonial—producing the decrypted drives would bring in the implied factual statement that Doe knew the decryption passwords. The focus should simply be on whether implied factual statements are involved; this key point better fulfills the purpose behind the standard of “requiring the use of the contents of one’s mind.”

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This is a confusion again between evidence and testimony. The Fifth Amendment does not prohibit requiring the accused to produce "mere evidence," which is what a key is. It prohibits requiring self-incriminatory testimony. Producing a combination is not a Fifth Amendment violation if it occurs because a search warrant was executed, or a constitutional but warrantless search occurred, and a slip of paper with your safe combination was found in the same wallet as your driver's license. But if a decryption key requires a passphrase you have to type, as well as the keyfob they can get with a search warrant, that's testimony. I don't care very much for the CA's way of explaining this, but they haven't said anything that isn't completely obvious if you don't make an unnecessary mess of it. Which it seems to me at a minimum that they and you are collaborating in doing.

Moreover, I don't understand why we're bothering about this. The District Judge was asked to grant immunity and enforce the subpoena. If a sufficient grant of immunity had been made, the constitutional analysis of the District Judge would have been strictly irrelevant anyway. The prosecutor is not required to be violating the Fifth Amendment otherwise in order to ask for an immunity grant. The CA is obviously correct that the minimum grant was use immunity, which had to extend not only to the testimony itself, but to the use of any incriminating material derived solely from the testimony. That's not law about encrypted disk drives, that's settled law about immunity. Despite some bloviating LA commentator's usual imprecise showmanship, when you get there, it's Gertrude Stein's Oakland after all.

 -- VictorA - 03 Mar 2013

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Forced Decryption and the 5th Amendment

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Forced Decryption and the 5th Amendment

 On February 23, 2012, the Wall Street Journal and Volokh Conspiracy reported that the Court of Appeals for the Eleventh Circuit decided that forcing a suspect to decrypt and provide a hard drive when the government did not already know what it contained violates the suspect’s Fifth Amendment protection against self-incrimination. While most of the Court’s analysis seems correct, I have a few problems with some parts.
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Facts of the Case

 The facts of the case, In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, are as follows. The government served a subpoena duces tecum on the suspect (“Doe”), compelling him to produce the unecrypted contents located on the hard drives of his laptop computers and five external hard drives. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012). Doe refused to comply with the subpoena, instead invoking his Fifth Amendment right against self-incrimination. Id. at 1338. The U.S. Attorney applied to the district court for an order that would grant Doe immunity and require him to respond to the subpoena. Id. The court rejected Doe’s explanations, judged him to be in contempt of court, and ordered him incarcerated. Id.
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The 11th Circuit's Opinion

 The 11th Circuit arrived at two overall conclusions. First, the district court erred in concluding that Doe’s act of decryption and production did not constitute testimony. Second, “in granting Doe immunity, the court erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.” Id. at 1341. I will be focusing on the first issue—“whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” Id. at 1342.

The Court stated two ways for the government to avoid implicating this right. First, Doe’s decryption and production would have to be a physical act, not a testimonial act that “requires the use of the contents of his mind.” Second, the government would have to already know what was inside the drives. The government would only be asking Doe to produce the decrypted drives; the knowledge of the content would have been a foregone conclusion. However, the Court held that the government failed to satisfy either method. Doe’s decryption and production of the drives was a testimonial act, and the “factual communications associated with the decryption and production [we]re not foregone conclusions.” Id. at 1346.

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Problems with the Court's Analysis

 While the Court’s analysis mostly seems correct, I have a few problems. First, regarding the distinction between a physical and a testimonial act, the Court lists some implied factual statements that determine whether Doe’s decryption and production of the drives would be testimonial. The Court states that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can be classified as using one’s mind, but the first factor should not be involved if Doe were to decrypt and produce the drives. By producing the drives, Doe would be showing that he had possession, control, and access to the drives and that he had the ability to decrypt the files. Regarding the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government just needs the decryption passwords so it can access the encrypted partitions inside the drives.

Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is [like] requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id.

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 -- VictorA - 03 Mar 2013
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Forced Decryption and the 5th Amendment


VictorAFirstPaper 4 - 08 Apr 2013 - Main.EbenMoglen
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Forced Decryption and the 5th Amendment

On February 23, 2012, the Wall Street Journal and Volokh Conspiracy reported that the Court of Appeals for the Eleventh Circuit decided that forcing a suspect to decrypt and provide a hard drive when the government did not already know what it contained violates the suspect’s Fifth Amendment protection against self-incrimination. While most of the Court’s analysis seems correct, I have a few problems with some parts.

The facts of the case, In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, are as follows. The government served a subpoena duces tecum on the suspect (“Doe”), compelling him to produce the unecrypted contents located on the hard drives of his laptop computers and five external hard drives. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012). Doe refused to comply with the subpoena, instead invoking his Fifth Amendment right against self-incrimination. Id. at 1338. The U.S. Attorney applied to the district court for an order that would grant Doe immunity and require him to respond to the subpoena. Id. The court rejected Doe’s explanations, judged him to be in contempt of court, and ordered him incarcerated. Id.

The 11th Circuit arrived at two overall conclusions. First, the district court erred in concluding that Doe’s act of decryption and production did not constitute testimony. Second, “in granting Doe immunity, the court erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.” Id. at 1341. I will be focusing on the first issue—“whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” Id. at 1342.

The Court stated two ways for the government to avoid implicating this right. First, Doe’s decryption and production would have to be a physical act, not a testimonial act that “requires the use of the contents of his mind.” Second, the government would have to already know what was inside the drives. The government would only be asking Doe to produce the decrypted drives; the knowledge of the content would have been a foregone conclusion. However, the Court held that the government failed to satisfy either method. Doe’s decryption and production of the drives was a testimonial act, and the “factual communications associated with the decryption and production [we]re not foregone conclusions.” Id. at 1346.

While the Court’s analysis mostly seems correct, I have a few problems. First, regarding the distinction between a physical and a testimonial act, the Court lists some implied factual statements that determine whether Doe’s decryption and production of the drives would be testimonial. The Court states that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can be classified as using one’s mind, but the first factor should not be involved if Doe were to decrypt and produce the drives. By producing the drives, Doe would be showing that he had possession, control, and access to the drives and that he had the ability to decrypt the files. Regarding the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government just needs the decryption passwords so it can access the encrypted partitions inside the drives.

Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is [like] requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id. However, the focus should simply be on whether implied factual statements are involved. A key vs. combination analogy seems to wrongly focus on a physical production of a key as opposed to a mental production of a combination, and the involvement of implied factual statements should be the primary factor.

Under this proposal, if compelling the production of a key or combination to a safe ends up involving implied factual statements, then such an act of production would be testimonial. In this case, the key factor should be whether the government actually knows that Doe has “knowledge of the combination”—whether Doe has the decryption passwords for the drives. If the government is unsure whether the suspect has knowledge of the combination, then the act of production should qualify as a testimonial act because such an act would be accompanied by the implied factual statement that the suspect knew the combination (e.g., a decryption password). However, if the government knows that the suspect knows the combination, then producing the combination should qualify as a physical act. This would be functionally similar to asking a suspect to produce a key; there is no implied factual statement.

Under this focus, then, it is the fact that the government is unsure whether Doe has “the combination to the safe” that makes Doe’s decryption and production testimonial—producing the decrypted drives would bring in the implied factual statement that Doe knew the decryption passwords. The focus should simply be on whether implied factual statements are involved; this key point better fulfills the purpose behind the standard of “requiring the use of the contents of one’s mind.”

-- VictorA - 03 Mar 2013

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VictorAFirstPaper 2 - 01 Mar 2013 - Main.YukoKawai
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Protection of Privacy in Japan Provisions of the Constitution and Act The right to privacy is not clearly stipulated in the Constitution of Japan, but many courts of Japan have admitted it as a constitutional right based on Section 13 of Chapter I of the Constitution since 1964. Section 13 stipulates “All people’s right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” In 1964, in one of the most famous cases, “Utagenoato”, the trial court stated at the first time that the right to privacy is essential for maintaining individual dignity and pursuing happiness, and thus is based on Section 13. However, since the courts admitted the right to privacy, there was no act realizing the right including the right to control (ex. disclose, delete, and modify) personal information for a long period of time. Therefore, only when the right to privacy was violated or was about to be violated, people were able to claim the right based on the Constitution. In 2005, responding to the development of information society which allowed companies to treat an enormous amount of personal information, the Act on the Protection of Personal Information was enacted. The purpose of this Act is to regulate business entity handling personal information in terms of protection of such personal information, and to give people the right to control their personal information. The main provisions of this Act are as follows: This Act applies only to business entity which has 5000 or more personal information at any time for recent six months.; Such entity shall specify the purpose of utilization of personal information as much as possible and shall not handle personal information about a person, without obtaining the prior consent of the person, beyond the scope necessary for the achievement of such purpose. ; In principle, the entity shall not provide personal information to a third party without obtaining the prior consent of the person. ; When the entity is requested by a person to disclose personal information, it shall disclose the information without delay. ; When the entity is requested by a person to correct, add, or delete personal information on the ground that the retained personal data is contrary to the fact, it shall make a necessary investigation without delay within the scope necessary for the achievement of the purpose of utilization and, on the basis of the results, correct, add, or delete the information. ; When the entity is requested by a person to discontinue using or to erase personal information on the ground that the information is used for reasons other than specified purpose of utilization, it shall discontinue using or erase the information without delay in principle. Problems of the Act on the Protection of Personal Information However, the effectiveness of this Act is doubtful at some points. First, as stated above, though the entity must obtain the consent of the person when it discloses his/her information to the third party, people are likely to provide consent unconsciously in a real world. By way of example, some applications that ask us to provide consent for sharing personal information with a third party on when we download them into our smartphone for free, but such notice is accompanied with other many notices and is too small to read on the smartphone screen. As a result, we just skip the notice and give them consent unconsciously. Consequently, especially on Internet, requiring the business entity to obtain the consent of its customers is often meaningless. Secondly, the penalty for breaching of the obligation of the business entity itself does not exist. Furthermore, though the penalty for violating orders requiring the business entity to take necessary measures to correct violation of its obligation exists, the amount of the penalty is not more than 300,000 yen, which is too low to work as a deterrent. In practice, the number of direct mail sent by a third party that uses personal information of another companies’ customers without the customers’ consent has not been decreasing after the effective date of the Act. Also, as mentioned above, though a person has the right to request the entity to discontinue using personal information, this provision does not apply to cases in which it costs large amount, and thus does not work well in some cases. For example, a certain on-line sales company does not delete personal information even after that person deleted the registration at the company and request to delete the information, claiming the huge costs. As a whole, the Act is not effective in terms of protecting personal information especially on Internet. Other Act and private efforts for protecting privacy on Internet As stated above, the Act on the Protection of Personal Information only applies to business entities. Therefore, when a private person discloses other’s personal information on Internet, people cannot claim the right to delete their personal information to that person based on this Act. Instead, people can ask a provider running the relevant website to delete the information based on the Act on the Protection of Personal Information. Also, private entities are attempting to make up for protecting privacy on Internet. For instance, Internet Association Japan was established in 2001. The aim of this association is to disperse rule/manner for people using Internet and to develop privacy protection system. Its supporting members are Internet providers and telecommunication companies, which enables the association to accomplish its purpose. Necessary changes in future Still, since these acts and private efforts are not enough to protect privacy on Internet, Japanese legislature should establish the act which focuses on protecting privacy on Internet (though Japanese legislature is unlikely to make such act at this stage.) Especially nowadays, children use Internet more often than adults and pay attention to their privacy much less than adults, and thus they are likely to be at risk of being violated their privacy. Consequently, establishing the act protecting children privacy like CPPOA in the U.S. is urgent need.

-- AyaNakamura - 01 Mar 2013

-- AyaNakamura - 01 Mar 2013

 
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VictorAFirstPaper 1 - 01 Mar 2013 - Main.AyaNakamura
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Protection of Privacy in Japan Provisions of the Constitution and Act The right to privacy is not clearly stipulated in the Constitution of Japan, but many courts of Japan have admitted it as a constitutional right based on Section 13 of Chapter I of the Constitution since 1964. Section 13 stipulates “All people’s right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” In 1964, in one of the most famous cases, “Utagenoato”, the trial court stated at the first time that the right to privacy is essential for maintaining individual dignity and pursuing happiness, and thus is based on Section 13. However, since the courts admitted the right to privacy, there was no act realizing the right including the right to control (ex. disclose, delete, and modify) personal information for a long period of time. Therefore, only when the right to privacy was violated or was about to be violated, people were able to claim the right based on the Constitution. In 2005, responding to the development of information society which allowed companies to treat an enormous amount of personal information, the Act on the Protection of Personal Information was enacted. The purpose of this Act is to regulate business entity handling personal information in terms of protection of such personal information, and to give people the right to control their personal information. The main provisions of this Act are as follows: This Act applies only to business entity which has 5000 or more personal information at any time for recent six months.; Such entity shall specify the purpose of utilization of personal information as much as possible and shall not handle personal information about a person, without obtaining the prior consent of the person, beyond the scope necessary for the achievement of such purpose. ; In principle, the entity shall not provide personal information to a third party without obtaining the prior consent of the person. ; When the entity is requested by a person to disclose personal information, it shall disclose the information without delay. ; When the entity is requested by a person to correct, add, or delete personal information on the ground that the retained personal data is contrary to the fact, it shall make a necessary investigation without delay within the scope necessary for the achievement of the purpose of utilization and, on the basis of the results, correct, add, or delete the information. ; When the entity is requested by a person to discontinue using or to erase personal information on the ground that the information is used for reasons other than specified purpose of utilization, it shall discontinue using or erase the information without delay in principle. Problems of the Act on the Protection of Personal Information However, the effectiveness of this Act is doubtful at some points. First, as stated above, though the entity must obtain the consent of the person when it discloses his/her information to the third party, people are likely to provide consent unconsciously in a real world. By way of example, some applications that ask us to provide consent for sharing personal information with a third party on when we download them into our smartphone for free, but such notice is accompanied with other many notices and is too small to read on the smartphone screen. As a result, we just skip the notice and give them consent unconsciously. Consequently, especially on Internet, requiring the business entity to obtain the consent of its customers is often meaningless. Secondly, the penalty for breaching of the obligation of the business entity itself does not exist. Furthermore, though the penalty for violating orders requiring the business entity to take necessary measures to correct violation of its obligation exists, the amount of the penalty is not more than 300,000 yen, which is too low to work as a deterrent. In practice, the number of direct mail sent by a third party that uses personal information of another companies’ customers without the customers’ consent has not been decreasing after the effective date of the Act. Also, as mentioned above, though a person has the right to request the entity to discontinue using personal information, this provision does not apply to cases in which it costs large amount, and thus does not work well in some cases. For example, a certain on-line sales company does not delete personal information even after that person deleted the registration at the company and request to delete the information, claiming the huge costs. As a whole, the Act is not effective in terms of protecting personal information especially on Internet. Other Act and private efforts for protecting privacy on Internet As stated above, the Act on the Protection of Personal Information only applies to business entities. Therefore, when a private person discloses other’s personal information on Internet, people cannot claim the right to delete their personal information to that person based on this Act. Instead, people can ask a provider running the relevant website to delete the information based on the Act on the Protection of Personal Information. Also, private entities are attempting to make up for protecting privacy on Internet. For instance, Internet Association Japan was established in 2001. The aim of this association is to disperse rule/manner for people using Internet and to develop privacy protection system. Its supporting members are Internet providers and telecommunication companies, which enables the association to accomplish its purpose. Necessary changes in future Still, since these acts and private efforts are not enough to protect privacy on Internet, Japanese legislature should establish the act which focuses on protecting privacy on Internet (though Japanese legislature is unlikely to make such act at this stage.) Especially nowadays, children use Internet more often than adults and pay attention to their privacy much less than adults, and thus they are likely to be at risk of being violated their privacy. Consequently, establishing the act protecting children privacy like CPPOA in the U.S. is urgent need.

-- AyaNakamura - 01 Mar 2013

-- AyaNakamura - 01 Mar 2013

 
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Revision 8r8 - 14 Jan 2015 - 22:44:39 - IanSullivan
Revision 7r7 - 12 May 2013 - 18:44:55 - EbenMoglen
Revision 6r6 - 01 May 2013 - 03:04:26 - VictorA
Revision 5r5 - 22 Apr 2013 - 19:05:28 - VictorA
Revision 4r4 - 08 Apr 2013 - 15:55:38 - EbenMoglen
Revision 3r3 - 03 Mar 2013 - 08:31:22 - VictorA
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Revision 1r1 - 01 Mar 2013 - 06:04:04 - AyaNakamura
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