EFF: being forced to decrypt your files violates the Fifth



I have been saying this about the surveillance in general. The NSA is handing off info to other LE agencies, without warrant, and they can receive incriminating evidence without actively investigating with probable cause.

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Here is something everyone can do to make a difference: get in the habit of creating and keeping randomly-generated data files, and make it known that you subscribe to this practice (i.e. state that you do so in web pages or forums that can be produced in court if ever needed). If the question ever comes up as to why you do this, you can say, “Because it creates a world where the difference between garbage data and encrypted data is known only to the person who owns such files, which is exactly how it should be”.

I think this notion should be made into a widespread, well-publicized movement, with a tagline and EFF advocacy and the whole works.


If one was ordered by court or police to decrypt files, I have long wondered if “forgetting” the password is any kind of defense. Authorities can neither order nor force me to remember what I have forgotten. I suppose jail for contempt is possible, but the alternative might be much worse.

The 5th Amendment has nothing to do with warrants. They almost certainly have a warrant to search the computer. The issue is whether or not the password counts as a testimonial statement that can be protected under the 5th Amendment.

I forget passwords all the time. I forget all sorts of things all the time (ask my mom or my girlfriend!). I would not be surprised, but extremely disappointed, if that became a crime simply because someone became interested in those things after the fact.

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Okay, gotcha. But there was a case recently where comments, or statements, not obtained under warrants, were going to be admitted into evidence. So basically now everything said or written everywhere is automatically Miranda-zed way before there is even a crime discovered? Someone surreptitiously reading correspondence or listening to phone calls, was not done with permission, while there was no active investigation. That is eliminating the right to self incrimination, since no one even asked permission for access, not even a judge, isn’t it? Basically police can have statements, without an investigation, and use it against you without the benefit of a lawyer.

Editing to add: That case will certainly be brought to the Supreme Court, so We’ll see how that plays out.

What do you mean, as far as webpages and forums? Make a habit of posting nonsensical things on the net? I’m not being snarky, I actually am not following. Or do you mean just save piles of garbage on your computer?

I mean save piles of garbage on your computer, and make public record of the fact that you do so (in webpages or forums, telling people, etc). When police grab your computer and find a file on it that they demand the keys to, you say, “That’s a garbage file. I keep garbage files. As I’ve long made a practice of. Look it up.”


I think one would really have to know the case and its facts before one could comment on exactly what’s being done and the legal justification for it.

Generally, however, the 5th Amendment applies mainly to: custodial interrogations where the government reasonably expects that the answers might be incriminating (typically post-arrest interrogations); and testimony under oath. The 5th was meant to eliminate forced testimony, and at the time it was written testimony under torture was the main concern. Later-charged suspects who said incriminating things before an investigation even began wouldn’t seem to be protected under the 5th, since nobody was forcing them to make the statements and the government was not expecting that person to say something incriminating.

Also note that the 5th Amendment right is a right that has to be asserted. If you voluntarily make incriminating statements without a lawyer (after being read your Miranda if you are in custody, or utter them under oath even without being Mirandized), those statements can be used against you.

If I tell you that I’m going to commit a crime, and you record this conversation and go to the police, I don’t have any 5th amendment protection against that evidence. But the case you’re describing has to be substantially different than this if it is newsworthy in any way.

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Yeah, I advocate a similar thing on a larger scale. Since the police have taken to treating environmentalists, peace activists, and other (largely) harmless and well-meaning folks as if they are terrorists, I believe we should identify the marker words LEs use to target said groups …

And incorporate them as catchphrases so ubiquitous that mass surveillance becomes ineffective. Similarly, encrypted emails will continue to look suspicious until encrypted emails are so common Aunt Mary and zany cousin Lou pass their grocery lists back and forth encrypted.

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yep good old:
cat /dev/random > file.bin
leave that running for a few days while you go off and do other things (it can only random while you have entropy) and soon you will have a huge random file. if it’s too big cut some off.

but i wouldn’t bother lying and saying it’s garbage, i would say i keep garbage files and leave it at that…they have to prove whether the file is encrypted or garbage.

course there is always the analog hack:

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