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

[Kenneth Ratliff]

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On May 24, 2009, at 3:22 AM, Robert Reese~ wrote:
> 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.

Right. And I'll bet you always do the speed limit as well.

I repeat - it's easy to be high and mighty and indignant. You call a  
foul? Who exactly do you have oversight of?

Sorry, but I'm slightly cynical when it comes to folks proclaiming  
their own virtues. If this rigidness you proclaim truly is part of  
your core character, and you've managed to spend all these years  
without getting shot, then I applaud you. My suspicion is that you are  
familiar with the concept of compromise, and that you know better than  
to think everything can be classified as black and white. You're not  
very good at the troll posture. It's somewhat ironic that you're a  
black and white kind of guy, because this guy is blatantly guilty.  
Unless, of course, you think there's absolutely nothing wrong with  
kiddie porn.

I'm going to give you a quick lesson in proper trolling -

Do you, Robert Reese, believe that child pornography is protected as a  
freedom of expression under the First Amendment of the United Stated  
Constitution? After all, if other forms of pornography are protected  
under the first amendment, why are child pornographers discriminated  
against? Isn't that wrong?

> 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.

meh, I'll bet you think internet petitions work as well. Communication  
is good. Method of communication matters. The hubris of most internet  
venue's is that we're all armchair constitutional lawyers,  
psychiatrists, physicists, mechanics, and feng-shui experts. I'd be  
willing to bet that the 5 people you told take away an incomplete  
understanding of the situation, and they will then in turn pass that  
on to others with, at best, an incomplete understanding, with the more  
likely result being that more will be lost in transmission. Didn't you  
play the telephone game as a kid? Word of mouth has it's flaws.

> 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.

That I certainly agree with, and it just goes towards making my point.  
I don't seem to recall you organizing the ALE mob to make sure nothing  
like this could happen in the state of Georgia. How many call and  
letter campaigns have you run? How many people have you organized to  
knock on doors and get the word out about an issue you believe in?  
Hell, forget running or organizing, how many have you even  
participated in?

>> 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.

Fact-based reporting. Hahahahahahahaha. You're doing enough 'fact- 
based reporting' of your own that you can't possibly be naive of the  
way facts can be represented to support almost any conclusion.

>>
>> 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.

Now you're not even trying. Spare me the patriotic chest thumping.  
There is a very distinct difference in consciously waiving your rights  
and losing them through your own ignorance. If a cop tells me I have  
the right to remain silent and anything I say might be used against me  
in a court of law, guess what? I'm going to stfu. I'm not going to  
waive my rights and then *admit* that yes, I did in fact download  
kiddie porn onto my laptop.

>> 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.

Of course not, willingly waiving your Miranda rights and admitting  
your guilt has absolutely no bearing on a 5th amendment claim.

What you really mean is that 'this is beside the point because it is  
direct contradiction to my point, so I'm going to pretend it's not  
important'

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

I go to bat for a very low number of guilty people. Right, because  
American law holds sway in Germany. While you're busy bringing up  
irrelevancies, don't forget to mention the purges in the Soviet Union  
while Stalin was in power. Maybe you'll also be able to explain how  
American case law applies to the entire Tibetan issue while you're at  
it?

If you want to make a point that's actually salient, you should  
perhaps mention the internment of Japanese-Americans during Word War  
II. Or hell, even the current inmates down at Gitmo is more relevant.

> 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.

That's funny, because as far as I'm concerned, it's you that just  
doesn't "get it".  If I shoot someone, and I give the police  
permission to search my car, they find the gun, and I tell them 'yeah,  
I shot the guy', the 5th amendment no longer applies. I have given up  
it's protection and I'm going to jail, and possibly to have a  
conversation with St. Peter about why I'm a bad bad man. If you waive  
your rights, you don't get to call a mulligan when you realize it  
might just be inconvenient for you.

btw, it's actually called a precedent.

> 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.

I repeat - when you waive your 5th amendment protections on something,  
you don't get to mulligan. Now, if he has child porn on his desktop at  
home, and it's encrypted, then sure, he can take the 5th on that. He's  
already given up the protections of the 5th amendment regarding the  
child porn on his laptop, and that's why the judge entered the order,  
and that's why I expect it to be upheld. And I'm with you on the  
reasonable doubt thing, that's why it's going before a grand jury.  
They get to decide whether or not to return the indictment and send  
him to trial, not whether or not he goes to jail.

> 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.

As a matter of a technical point, that likely would have been moot.  
PGP would have expired the session and required the passphrase  
eventually even if the computer had been kept powered. The ICE agent  
*should* have completely documented all evidence on the laptop right  
then and there, but more likely than not, if the cop testifies that he  
found child porn on the computer, the jury is going to believe him. As  
far as again waiving the right.... he already did that. He retains his  
5th amendment right for any *further* self-compromise, but for the  
damage that's already done, he's screwed. That's what the judge says.  
You happen to disagree, and that's your right. I happen to agree with  
the judge. Now it's up to the 2nd Circuit to decide if the judge was  
right or wrong.

Since you're so passionate about this issue, I assume you or a group  
you're actively participating with over this issue will be filing an  
amicus curiae? Please send me the link to it when you do, I'd like to  
read it.

> 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.

I have fingers to type with, and a mouth to say so. I most certainly  
have the ability.

> 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.
>

Sir, I must protest your infringement of my First Amendment rights by  
claiming that I have no right to speak my mind!

Dude admitted to downloading child porn to a federal officer. That's a  
legal admission of guilt. I stand by my words. If a jury finds him  
innocent, I will publicly apologize and retract my statements about  
the mans character. Until then, I do not waive my right to be part of  
the peanut gallery. If you don't like it, tough.

as a side note, it's slightly hypocritical of you to try and call me  
out for an inflammatory statement when your express purpose was to  
reignite the flamefest. Just saying!

>> 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?

If that drive had been fully encrypted and he had asserted his 5th  
amendment rights when questioned, I'd be right there with you. Refusal  
to cooperate does not equal guilt. That's not the case here, as he  
already admitted guilt. Contrary to your opinion, the slope isn't all  
that slippery. It's not even that much of a slope.

>> 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.

Oh, of course, please, let me retract the statement in it's entirety  
now that you've enlightened me!

Or... not. Haven't seen any compelling evidence as to why it's wrong.  
But please, try and convince me again. Maybe you're right and I just  
don't get it!

> 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.

Wait, wait, wait.

Let's go back to the beginning of this -

> 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.


What happened Mr. Black and White? I thought you were all 'the rules  
is the rules is the rules, and that's that!' *Now* you want to make a  
case for individual mitigating circumstances? Hey Ref, child porn is  
illegal. Hey Ref, he admitted he had it. Hey Ref, call the foul. No?  
What are you Ref, blind?

Nice show of consistency there, councillor.

>>> 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.

That's funny, because I'm sure that's the exact same thing the Obama  
Kool-Aid Brigade thought.
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