[ale] [OT] encryption rights under attack - was Reignited: Linux apparently illegal in MA

[Robert Reese~]

>> A silent voice harks no dissent.  Which is exactly WHY I get bent
>> out of shape,
>> and so should every American when this happens.  Not getting bent
>> out of shape
>> and voicing it is exactly why cops being 'douchebags' happens a
>> lot more than people believe.  cD
>>
>
> Yeah, yeah. It's easy to be high and mighty and indignant. Do it
> too often, and you might need to go visit a pre-school and relearn
> the tale of one kid who cried wolf a little too often.

That is a different tale as the analogy is false.  The little boy who cried wolf 
did so without the presence of an actual wolf.  I'm rather like a strict referee 
that honestly takes his job seriously and without preference: I'll call a foul 
each and every time one occurs.  If one team seems to be getting a lot of fouls 
it's because they're committing them.  If they don't like the image they receive 
by getting tagged so often then their recourse is to stop committing so many 
fouls.


> If the court had also gone toward douchebaggery, my dissent would
> have been quite loud, though not applied in this venue. I don't
> believe in impotent nerd rage over an internet forum or mailing
> list.

There is nothing impotent in the power of networking, awareness, and vigilance.  
;c)  If just five more people learned about this abuse of power by the police 
and the original courts, and the government in general, those are five more 
people who can each tell more people as well as create and join informed 
discussions.


>I much prefer having words with my elected representatives
> and my fellow constituents. It tends to be a little bit more
> effective.

You know what's even more effective?  Mobs ringing the elected representative's 
phones and fax machines off the hook, reporters beating down his or her doors, 
and many constituents asking informed questions and expressing their own words 
of concern and dissent.


>People in positions of authority acting like douchebags
> is an ever present problem.

All the more reason to be vocal about the abuse.  The more they do it, the more 
we need to.


>It's hardly a character flaw that is
> unique to law enforcement. I'm more concerned with the people that
> they're answerable to. Most judges have their heads on straight,
> thankfully.

It shouldn't get to the judge in the first place.  And I would not go so far as 
to say 'most' but rather 'many'.  Unfortunately, too many have their head 
straight elsewhere and make damaging decisions.  And many up the ladder follow 
suit.


>> Do you actually believe that?  I used to.  This can, and has,
>> happened _here_ in
>> the U.S.  Just three months ago, and only three months after the
>> above ruling on RIPA Pt. III, we get this decision:
>>
>> http://news.cnet.com/8301-13578_3-10172866-38.html
>> <http://news.cnet.com/8301-13578_3-10172866-38.html>
>>
>
> Man, I knew what this issue was before I even clicked on it, and
> it's just one more instance of sensationalist reporting.

Hmm.... fact-based reporting being represented by someone as sensationalism?  
Where've I heard that one before?  Oh, yes, propaganda 101.  Only here it won't 
work.


> It's really hard to infringe on rights which you've given up.

You give them up when you won't stand up for them or stand up for the next 
person's rights.  Do that too often and you'll lose them without realizing it.


>The
> dude was read his Miranda rights, and like a moron, he waived them
> and copped to downloading child porn.

Completely and utterly beside the point and has no bearing on the issue.


>He was not beaten, the border
> guard did not threaten him with detainment if he didn't decrypt the
> hard drive.

Completely and utterly beside the point and has no bearing on the issue.


> Sorry, but I'm not going to bat for a pedophile,
> especially one who's apparently intelligent enough to use
> encryption, but not intelligent enough to dismount the encrypted
> volume before he passes through a border checkpoint.

You don't go to bat for very many people, do you?  Ask the Protestants in 1930's 
Germany how that worked for them.

That's a big part of the problem... you just don't get it.  It doesn't matter 
whether he's guilty or not.  This is a clear danger to EVERYONE'S Fifth 
Amendment rights, not just his.  It's called a "Precedence".  It's also called 
"Case Law".  What you don't know or understand about these terms will hurt you 
and the rest of our society.


> He did wrong,
> he screwed up and cheated himself out of his rights. I have no
> problem with a court order requiring him to decrypt the drive
> before the grand jury, because he's already given up his 5th
> amendment rights on that score. I'd be surprised if the appellate
> court didn't uphold the ruling.

No, he did not give up his 5th Amendment rights.  You have a right to waive a 
portion and then reclaim the 5th again.  What you've already done or said can be 
used against you, but you cannot be compelled to repeat what you've done or said 
nor can you be compelled to further implicate yourself.

But you are unfamiliar with the nuances of this case, evidently.  When he waived 
his Miranda rights and admitted to "_possibly_ having child porn" on his 
computer and the officer found something that _may or may not_ be child 
pornography, he has to contend with the possibility of being convicted by his 
own statements as well as the testimony of the arresting officer.  He can go to 
court and the DA can try to get a conviction; the problem there is "possibly" 
and "might be" tend to infer reasonable doubt.

Except the problem is the officer failed to secure the evidence, which may or 
MAY NOT be illegal pornography.  That is important.  Had the officer kept the 
laptop powered and decrypted, the investigators would have had everything they 
needed to proceed with a case and with neither a 4th nor a 5th Amendment issue.  
They did not.  They don't now get the right to demand that he again waive his 
Fifth Amendment right and decrypt his computer.

Was he in idiot?  Sure.  But he still has rights; the very same rights you and I 
do.  Do I like people that view child porn.  Not at all.  But what affects them 
affects us when it comes to the justice system.  If you allow their rights to be 
abused and ignored then you cannot complain when yours are also abused and 
ignored.

Something you said is also a problem: you called him a pedophile.  You have no 
ability to do so, even if there was the potential for child pornography on his 
computer.  Why not?  Simple.  He didn't intend, according to him, to have any of 
that on his computer.  Heck, he was being quite cooperative and honest with the 
officer so there is no reason to doubt his claim of reasoned innocence.  He used 
a news scraper to download the binary attachments from a newsgroup specializing 
in porn.  He later reviews and discards the images he neither wants, likes, or 
he finds objectionable.  Frequently, in those scrapes, the software downloads 
illegal images.  He had not taken the time to remove those images before 
crossing the border.  Stupid?  Yes.  Criminal?  No.  Nor does that make him a 
pedophile.  Further, you should at least call him a 'suspected' pedophile since 
he has not yet been legally found as such.  And until then you have no right to 
call him a pedophile.


> I would see to make a case out of is a 4th
> amendment issue, especially given ICE's legal right to seize
> laptops for an indefinite period of time.

That too.


> But truth be told, if I'm
> a pedophile, I'd rather lose the laptop with the drive still
> encrypted and refuse to turn over my passphrase (that would be
> asserting my 5th amendment rights) than to waive them and be facing
> a grand jury indictment for child pornography.

Exactly!  Now you're getting the picture that this is indeed a 5th Amendment 
case.  But even if you weren't, by your reasoning he must be guilty because 
otherwise he'd have no reason to not enter his passphrase.  Do you want to ride 
that slippery slope?


> I know this is hard to hear since it isn't lockstep with your blind
> fanaticism, but please try to choose object lessons that will stand
> up to scrutiny.

These lessons seem to be standing quite well on their own, but thank you for 
your concern.


> Bad guy incriminates himself through own stupidity
> is not a failure in the system. The object lesson you want this to
> be is that 'big bad government tramples on individuals rights.'
> What is instead is 'stupid criminal shoots self in foot.' This guy
> should be getting a darwin award, not a vigorous defense from
> crypto proponents.

I'm hoping you'll retract the above paragraph now that you've been given 
guidance on why its wrong.


>> Coincidence?  You tell me.  The Fifth Amendment may will survive
>> once this gets
>> higher into the appeals courts.  But it never should have gotten
>> to *any* court in the first place
>>
>
> Right, because letting a federal agent see you have kiddie porn on
> your hard drive, and then admitting that you downloaded kiddie porn
> is something that should in no way ever see the inside of the court.

Incorrect.  But we went over that above, too.


> Seriously, do you actually pay attention to the entire case or do
> you just pick out the parts that you don't like and ignore anything
> which may be detrimental to your point of view?

As you have found, I pay attention to entire cases, warts and all.  ;c) 

Case in point: I remember the Rodney King case and watched it acutely.  I felt 
little sympathy for Rodney himself as I am a proponent of ending dangerous 
pursuits with lethal force before someone gets hurt or killed, and a minimum of 
10 years without early release for running.  However, when Rodney was clearly on 
the ground, hand-cuffed, and surrounded by no less than TEN cops which meant he 
posed NO FURTHER THREAT, there was no reason to beat him the way they did.  I, 
too, was outraged when the cops were found not guilty.

However, it seems that unless the case is pure Virgin Mary clean without even a 
shadow of potential dirt, you won't even bother to consider its individual 
merits.  Prove me wrong, please.  I really, really hope you do.


>> Don't hold out HOPE for the Obama administration to save us.
>> Back during
>
> Of course not, I voted Republican like a good Georgian.

I voted for Bob Barr, a good Georgian I like.  Had he made it, we never would 
have had these discussions.

Cheers,
Robert~