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Evening Legal Briefs

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13 Replies. 1 pages. Viewing page 1.
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13. Re: New GeForce Drivers and GTX 1080 Ti Reviews Mar 22, 2017, 02:13 Orogogus
 
descender wrote on Mar 21, 2017, 15:24:
Contempt is designed to be used for forcing the reveal of anonymous sources, not for self-incrimination.

Is this sarcasm? Contempt of court is used for a lot more than that.

jdreyer wrote:
Second, the gun analogy isn't really applicable here. A better analogy might be if he had a stash of kiddie pr0n mags and he hid them. The sister knew they existed, but the man couldn't remember where he'd hidden them. Could he be compelled to give up their location? Nope

It seems to me that it's more like his stash is in a box and he's refusing to open it. They don't actually care about the password. The authorities didn't ask him for it, they told him to unlock the encrypted drives, and for obvious reasons they don't believe him when he says he conveniently forgot -- hence the charge of contempt. They probably will charge him with just the evidence they have, but the details of the case are sealed so it's pretty murky.

It's not like this is a warrantless search. It's been established that most people aren't on board with encryption backdoors, for good reason. But at the same time it's not okay for the government to force people to let them in, either. It's like if buildings were unbreakable and you were allowed to just tell the police they couldn't come in, warrant or no warrant. You'd be able to get away with actual murder.

As the article says at the end, even if this is all well and good for child pornography, what about companies? When the government investigates them for wrongdoing, can they just claim they forgot every single password for their computers and networks and then not turn over any documents and records? The only reason the authorities in this case have any electronic evidence is because the guy didn't encrypt his computer. When people want the government to get on board with the digital age, what does the ideal procedure for catching these kinds of criminals look like? Installing Mission Impossible spy cams all around his house?
 
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12. Re: New GeForce Drivers and GTX 1080 Ti Reviews Mar 21, 2017, 21:16 jdreyer
 
Orogogus wrote on Mar 21, 2017, 14:56:


Forensic examination of the computer indicated that the device had been used to visit known child exploitation sites and to download thousands of files with the same hash values as known child pornography files.

The files themselves, however, were not present on the computer. They are assumed to be stored on the external encrypted hard drives.

Authorities in Delaware investigating the case already had a sense of the contents of the drives because, according to court documents, the defendant's sister had told police investigators "that Doe had shown her hundreds of images of child pornography on the encrypted external hard drives."

It's not like they have nothing. Is the general position that the cops should just give up in cases like this and not bother prosecuting?

First, the DA should prosecute on what he's got and not compel the accused to provide additional evidence against his will.

Second, the gun analogy isn't really applicable here. A better analogy might be if he had a stash of kiddie pr0n mags and he hid them. The sister knew they existed, but the man couldn't remember where he'd hidden them. Could he be compelled to give up their location? Nope.

Look, if this guy is guilty, lock him up. Just don't violate the constitution to do it, because that's a slippery slope, and especially in this day and age we need to aggressively defend that.
 
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11. Re: New GeForce Drivers and GTX 1080 Ti Reviews Mar 21, 2017, 15:24 descender
 
I don't really know what the cops/prosecutors should do. They need to establish precedents that don't violate your rights before they try to incriminate people with them. Not starting with a compromise of your rights and then sort out the details with the ACLU later.

How could a court determine the difference between forgetting and withholding information? It would be far too subjective for any sort of legal precedent. They are simply going to have to find ways to try the case without requiring the defendant to incriminate himself, just like in all other court cases. Digital passwords are no different than a padlock and the cops simply need to get on board with that. You can't compel me to produce a key or a combination of numbers, why should I give you a password?

If a court could somehow prove that a person knew something it would eliminate the need for most trials. Contempt is designed to be used for forcing the reveal of anonymous sources, not for self-incrimination.

What likely happens here? The court finds him in contempt, he goes to jail for a few days/weeks while the court loses the contempt case. He goes free because they have no legal authority to compel him to testify against himself.

This is my armchair novice lawyering at work here... The problem I see with this case is they tried to prosecute him for possession of the images and they didn't actually have any evidence of that. Child porn laws exist for "possession, distributing, or receiving such images. Instead of prosecuting him for receiving the images (which they have already proven), they tried to compel him to admit possession. He doesn't legally have to do that... so IMO the prosecutors fucked this case up.
 
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10. Re: New GeForce Drivers and GTX 1080 Ti Reviews Mar 21, 2017, 14:56 Orogogus
 
descender wrote on Mar 21, 2017, 14:45:
"Your Honor, the defendant knows he killed the victim... he just won't tell us he did. He remembers everything else he did that day except for the part where he is accused of committing murder."

Yeah, that'll work well! Rolleyes

The courts are really struggling to get acclimated to this new digital paradigm.

Well, and if the defendant's sister told the police that he showed her the body, and bullets on scene were provably fired from his gun.

Forensic examination of the computer indicated that the device had been used to visit known child exploitation sites and to download thousands of files with the same hash values as known child pornography files.

The files themselves, however, were not present on the computer. They are assumed to be stored on the external encrypted hard drives.

Authorities in Delaware investigating the case already had a sense of the contents of the drives because, according to court documents, the defendant's sister had told police investigators "that Doe had shown her hundreds of images of child pornography on the encrypted external hard drives."

It's not like they have nothing. Is the general position that the cops should just give up in cases like this and not bother prosecuting?
 
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9. Re: New GeForce Drivers and GTX 1080 Ti Reviews Mar 21, 2017, 14:45 descender
 
"Your Honor, the defendant knows he killed the victim... he just won't tell us he did. He remembers everything else he did that day except for the part where he is accused of committing murder."

Yeah, that'll work well! Rolleyes

The courts are really struggling to get acclimated to this new digital paradigm.
 
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8. Re: Evening Legal Briefs Mar 21, 2017, 13:55 Orogogus
 
jdreyer wrote on Mar 20, 2017, 22:22:
How is that NOT a fifth amendment protection? It's the very definition of self incrimination.

Because the wording of the amendment is, "No person shall... be compelled in any criminal case to be a witness against himself." There's debate about the issue, and I certainly don't think this is a poster child case -- providing your password doesn't really look like being a witness. The "very definition" would be going on the stand as a witness and telling the court that you downloaded child porn.

One interpretation is that witness testimony is meant to provide new information, which is why they're making such a big deal about already knowing what they'll find. The EFF's position is that you can't be compelled to disclose anything in your mind, but I don't know if that was really ever the intent of the amendment.

It also seems to me that saying you forgot isn't claiming your fifth amendment rights, and does look like contempt.

As far as convicting the guy goes, I think having child porn to show a jury would be more convincing than IT testimony. And they'd probably have more counts to nail the guy with. And it could help any ongoing investigation.
 
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7. Re: Evening Legal Briefs Mar 21, 2017, 08:41 {PH}88fingers
 
ViRGE wrote on Mar 20, 2017, 23:28:
jdreyer wrote on Mar 20, 2017, 22:22:
How is that NOT a fifth amendment protection? It's the very definition of self incrimination.
Because he does know the password, and has said so at other times. He just doesn't want to disclose it. Which long story short, he's not protected from since the authorities already know what they're going to find on it (they accessed the computer and know the hashes of the files he downloaded).

That's total garbage. So I see so now we are summarily convicting people without evidence and without trial.
If it's a foregone conclusion then charge the man and start the trial. Foregone conclusion means that you already have enough evidence to support the charges. If the entire case hinges on the discovery of actual evidence then the evidence you have is purely circumstantial and therefore is not a foregone conclusion.
 
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6. Re: Evening Legal Briefs Mar 20, 2017, 23:39 ForgedReality
 
So AMD can't make money in the CPU or GPU space, so they've decided to become a patent troll. Nice.  
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5. Re: Evening Legal Briefs Mar 20, 2017, 23:28 ViRGE
 
jdreyer wrote on Mar 20, 2017, 22:22:
How is that NOT a fifth amendment protection? It's the very definition of self incrimination.
Because he does know the password, and has said so at other times. He just doesn't want to disclose it. Which long story short, he's not protected from since the authorities already know what they're going to find on it (they accessed the computer and know the hashes of the files he downloaded).
 
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4. Re: Evening Legal Briefs Mar 20, 2017, 22:22 jdreyer
 
How is that NOT a fifth amendment protection? It's the very definition of self incrimination.  
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3. Re: Evening Legal Briefs Mar 20, 2017, 21:32 RedEye9
 
Bill Borre wrote on Mar 20, 2017, 21:08:
Hmmm. I forget passwords all the time. How do the judges know he's lying?
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2. Re: Evening Legal Briefs Mar 20, 2017, 21:30 RedEye9
 
dup  
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1. Re: Evening Legal Briefs Mar 20, 2017, 21:08 Bill Borre
 
Hmmm. I forget passwords all the time. How do the judges know he's lying?  
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