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Encryption And The Constitution: 5th Amendment Under Fire?

There is an interesting court case going on right now in Wisconsin, which holds quite a bit of importance in the current digital era where the 5th Amendment is concerned. Jeffrey Feldman is accused of downloading child pornography from a file sharing site online, however federal agents hadn’t been able to get past the encryption on his computer’s hard drives in order to obtain evidence. The prosecution and government demanded that he unlock the system, however his attorney Robin Shellow argued that should Feldman decrypt the files it would violate his 5th Amendment rights against compelled self-incrimination. From Wired:

Shellow is making a novel argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government. That’s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.

“Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data,” Shellow wrote in a court filing. (.pdf)

Recently a court magistrate commanded Feldman to decrypt the files so that agents could get access. Continue Reading

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I have a moral dilemma with this

I (like the overwhelming majority of us) think anyone downloading child porn are sick as f**k.

At the same time I (like many of us) have a morbid fascination viewing human suffering, even when it comes at the human rights violation of others.

Should all of us who've viewed images of war be jailed, like those pictures of the Guantanamo torture victims for example? Yes, throw the book at those who committed the crime in those photos. But what added crime is there to those victims for the rest of us viewing the photos?

It seems the only difference between the two scenarios is society's level of disgust.

On one hand the human/emotional side of me has a visceral reaction to those who get off on viewing child porn and I want to say "kill 'em all!" However, the libertarian side of me has a hard time seeing the difference when emotion is taken out of the equation.

In other words... the philosophical viewpoint of voluntary exchange has been violated only once in both examples and the difference is purely subjective emotion. Thus, as much as it pains me to say this... even if this guy did download child porn (as abhorrent as that is) I'm forced to conclude no crime was committed - definitely deserves to be shunned from society but not put on trial or placed in jail.

Any and all thoughts on this are welcome.

Need I remind you

He is only accused of downloading child porn.

We should apply the same standards for evidence gathering and the same rights to everyone, regardless of the heinousness of what they are *accused* of.

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I hear you and I agree

What I'm saying is that no crime has been committed regardless if he downloaded child porn or not. The accusation should be irrelevant and this shouldn't have gotten to the point where we're discussing the 5th amendment.

BTW - I did say "if"

oops wrong comment

replied to wrong comment

Another victimless "crime"

Who is the victim of his alleged "crime"?
What person was harmed by his actions, however immoral they may be?

don't go down that path, there is indeed a victim

the pornographer harmed the child, no question. a case could easily be made, IMO, that the viewing of the material is not only being an accomplice in its creation by being the consumer demanding it (though that would be a dangerous precedent in general, I think in the particular case of child pornography it is a valid argument... being on the "demand" side of supply and demand for something that heinously and violently harms someone, especially a child, is in some ways tantamount to commissioning it, causing it to happen)... but also, if you're uncomfortable with that line of logic, you are hurting that child by violating the child's right to their own person. children are not capable of consenting to contracts, so the child did not place that image out there for consumption, it was not a voluntary thing and the child was absolutely victimized by people seeking out and getting in possession of such images.

There is no victim in this particilar "crime".

Whatever pornographer's incentive may have been, the decision to harm child was done by pornographer, who shall be punished, but it is a different case between different people.

Act of downloading anything from the internet by itself does not harm anyone (except, possibly, the person doing download). Whatever incentives were created by the act of downloading, are just that, incentives.

Other people have free will to act or not act upon this incentives and be judged based on their deeds.

Thank God I'm not the only one who sees this.

It's a tough position to take because you certainly don't want to be viewed as condoning such disgusting behavior but from a pure libertarian viewpoint I believe you're absolutely right.

Havent been able to break the

Havent been able to break the encryption? They are either in a hurry, or they are inept; or the guy knows a thing or two.
Any encryption we have currently can be broken. At its simplest, you could brute force your way through some types of encryption. As far as I know(this could have changed since I last looked into it), even the toughest encryption can be broken given a few months; using the best computers of course.

To climb the mountain, you must believe you can.

In 2008 Brazilian authorities

In 2008 Brazilian authorities spent 5 months trying to break into the encrypted files of some banker. After that they sent the files to the US where the FBI (I believe it was the FBI) spent 1 year attempting to break into the encrypted files.

After all that time, neither the Brazilian or US authorities were able to break in. The encryption system used was http://www.truecrypt.org/


Oh, well apparently my info

Oh, well apparently my info was outdated. Nice that truecrypt is so secure since thats what I use. haha

To climb the mountain, you must believe you can.

Keep a large encrypted drive with 1 file..

Very interesting situation. I don't think he should give it up.

If he is truly a "pedophile" they should have no problem collecting enough evidence to convict him via his email accounts, chat room logs, phone records, credit card purchases, etc. Sounds more like some fat ass cop sitting behind a computer shooting fish in a barrel. Zapping any IP address that happens to download files planted and available from THEIR computers via file sharing.

God grants liberty only to those who love it, and are always ready to guard and defend it. – Daniel Webster



Listen to Lions of Liberty on Daily Paul Radio every Friday at 7pm EST!


Again, no one would want to side with a pedophile, but rights are rights.

The way I see it is if the password is in his head they cant touch it. They can get warrants to your home and property to obtain evidence, but could they ever make you tell them where the evidence is?
As far as I am aware there has been no precedence that a suspect is ordered to provide knowledge that is only stored in their minds in order to discover evidence against said suspect. To me this is the same situation. If they can find the password elsewhere, or decrypt it themselves then have at it. But until they can produce a search warrant for all the knowledge in his head, they are out of luck in my opinion.

A good example is if a murder hid the body. The court cant order the person to disclose the location of the body (even if the knew with out a doubt that he hid it) because that would be providing evidence against him. Now they can compel him by offering him a plea deal or something, but not throw him in jail for contempt.

Of course I find the contempt of court thing ridiculous. Most of the time it is used because someone exercises their first amendment in the court room, and the judge gets his feeling hurt.

robot999's picture

Did you mean

No one would want to side with an ACCUSED pedophile? I think we must watch ourselves not to fall into these traps of accused = (something more than accused) Not saying you did this, just wanted to make a point about how easily it is for anyone to fall into this trap.

"Government is the entertainment division of the military-industrial complex". - Frank Zappa

I agree with you. You can be

I agree with you. You can be blamed of something without any bit of evidence and it can ruin them. Maybe that's why honor use to be something important. Your name was everything, and to have it tarnished was devastating. But to lie to tarnish someone else's name was even worse. Therefore people didn't falsely accuse people so easily.

So to rephrase it, I wouldn't side with a known pedophile, weather its by conviction (although the court system is a joke) or strong evidence.
But regardless of known, accused, or innocent, everyone has equal rights and should be treated as such and as innocent until proven guilty. That is something we have forgotten. And I know first hand how they try to ruin you to show their power, without evidence. Just an accusation now is a major haste for even the innocent.