|
|
Log in / Subscribe / Register

appearances matter move to switzerland

appearances matter move to switzerland

Posted Feb 6, 2025 9:54 UTC (Thu) by lunaryorn (guest, #111088)
In reply to: appearances matter move to switzerland by linuxrocks123
Parent article: The Linux Foundation on global regulations and sanctions

What difference would that make? The Fifth Amendment grants a general right to refuse testimony as a defendant in a criminal case. A defendant cannot be forced to surrender keys to an encrypted volume, whether hidden or not, and this has been litigated a lot already. Similar provisions exist in the constitutions of most liberal states.

The technical minutiae of hidden volumes would only matter if law enforcement and courts solely focused on the actual contents of storage devices and ignored all other evidence prosecution has already gathered to obtain a warrant to seize the defendants hardware in the first place. But a court would obviously consider all circumstantial evidence as well, and - upon hearing expert testimony about how Truecrypt can trivially create hidden volumes - would likely not find mere denial plausible anymore. The Fifth Amendment protects the defendant in this case, but it would do so too if the volume wasn't hidden.

If the Fifth Amendment didn't exist then law could just be written such that circumstantial evidence alone was already be sufficient to penalize the defendant for failing to surrender keys; the court would just be required to directly prove the existence of the volume in this case.

The whole idea of hidden volumes seems to rest on the idea that the law allows prosecution to legally force the defendant to surrender encryption keys, but then does not allow any evidence other than specifically proving that the encrypted data exists in the device contents. As a basic premise, that's rather absurd, in my opinion.


to post comments

appearances matter move to switzerland

Posted Feb 6, 2025 11:09 UTC (Thu) by mb (subscriber, #50428) [Link] (2 responses)

It protects against
https://xkcd.com/538/

appearances matter move to switzerland

Posted Feb 6, 2025 11:33 UTC (Thu) by farnz (subscriber, #17727) [Link]

The challenge is that where XKCD 538 applies, hidden volumes don't protect you. Indeed, not actually having the data won't protect you - you're going to get assaulted because there's a belief you have the data, and no amount of technical evidence that you don't have it will help.

Indeed, you're better off being able to give them the password and the data they want, because they "know" you have it, and will continue to beat you until they get it from you. If you claim you don't have it, then it's "obvious" that you're lying, you've done something to keep it from them (whether they're organised crime or a legitimate government body), and you deserve the beating until you give them the data they want.

appearances matter move to switzerland

Posted Feb 6, 2025 11:55 UTC (Thu) by lunaryorn (guest, #111088) [Link]

I find it quite hard to believe that a security agency in a regime which has so little respect for civil rights as to explicitly tolerate or even legally sanction outright torture would pay any respect to a defence relying on the technical minutiae of a particular encryption software.

appearances matter move to switzerland

Posted Feb 6, 2025 11:58 UTC (Thu) by lunaryorn (guest, #111088) [Link]

...the court would just *not* be required to directly prove the existence of the volume in this case.

I just noticed that this particular typo is somewhat crucial.

appearances matter move to switzerland

Posted Feb 7, 2025 0:49 UTC (Fri) by linuxrocks123 (subscriber, #34648) [Link]

The majority view, followed by multiple federal circuits, is that the prosecution can't make you decrypt things using a password you know but can make you decrypt things using your fingerprint or other biometrics.

The minority view, followed by some state supreme courts, is that the prosecution can make you decrypt things using a password you know and also can make you decrypt using biometrics.

People have been in prison for contempt of court for years before legal aid organizations appealed their cases high enough to get the contempt order overturned and thereby to establish the majority view. And, the majority view is still not universal, especially at the state level.

Using a TrueCrypt hidden volume would definitely make someone's contempt case more clear-cut: you are holding me in contempt for not producing something that there is a very good chance may not even exist.


Copyright © 2026, Eklektix, Inc.
Comments and public postings are copyrighted by their creators.
Linux is a registered trademark of Linus Torvalds