Can using TrueCrypt mean being charged with Obstruction of Justice?

wackyvorlon · 11 months

You set up a duress password. They ask you for password, you give them a password. All they find are personal documents that are not even remotely illegal. They go away.

hellis12 · 11 months

Here's something I found on the subject

If you were in the US, you could exercise your 5th amendment rights (by remaining silent) and by doing so you retain plausible deniability. Your admission to the key would incriminate yourself so keep your mouth shut.

I wish we had a few supreme court rulings on the issue here in the US which could set a precedent.

niczar · 11 months

It would be pure speculation that the file contained anything at all or in fact even had a key that could open it. So it wouldn't be possible.

However in the UK, if they say there is a file that could have a key and you don't have the key then you have no defence and are guilty. It's a totally fucked up law, beyond all reason and sense and in defiance of hundreds of years jurisprudence. But we're all property of the state now, slaves who will obey or be punished.

rcinsf · 11 months

I don't know about anyone else here, but 90% of my passwords are muscle memory. There's been a few times I've completely forgotten them under times of stress. They come back to me when I calm down, but there's no way I could bang out a 20+ character password to a jury in courtroom, much less repeat it verbally.

infinitree · 11 months

Attached to this recent story about a DoE raid was the search warrant. On the last page, "Attachment B", section "t" reads:

Any passwords, password files, test keys, encryption codes, or other information necessary to access the computer equipment, storage devices, or data

I don't know if you are in the US or in the UK, though I'm guessing UK. Here's an article from The Register: "Two convicted for refusal to decrypt data."

The law in the UK concerning this is the Regulation of Investigatory Powers Act 2000. Ctrl-F and search for "encrypt". Possible sentence of 2 years.

Here's Wikipedia's entry on key disclosure law which includes information about how several countries handle the issue.

If the authorities are able to detect that an encrypted partition/container exists, and they have the proper warrant, then yes you are supposed to give them the key. Plausible deniability really only applies to a hidden encrypted partition/container. The process is described in detail on TrueCrypt's site.

ninja edit: left a word out.

switch_perspective · 11 months

There seems to be a lot of non-answers on here, that don't directly engage the question. Here is a direct answer:

In the US, if your password, or method of opening your truecrypt volume, is memorized and does not exist in a physical form or in the form of a digital certificate or key, then it is protected by your 5th amendment rights. If, however, it exists as a digital key that resides anywhere outside of your mind, it can be seized/subpoena, and any obstruction or refusal of this subpoena would put you in contempt of court. The idea is that if you are the sole means of opening the encrypted drive, then your opening of it is, in effect, testimony that you are the owner and responsible for the information present on the drive.

Sources: Boucher v. US - 2007

"Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop. The act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial” and entitled to Fifth Amendment protection. United States v. Doe, 465 U.S. 605, 612 (1984) [hereinafter Doe I] (“Although Case 2:06-mj-00091-jjn Document 35-2 Filed 11/29/2007 Page 7 of 17 8 the contents of a document may not be privileged, the act of producing the document may be.”). An act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect’s control. Doe v. United States, 487 U.S. 201, 209 (1988) [hereinafter Doe II]. The privilege against selfincrimination protects a suspect from being compelled to disclose any knowledge he has, or to speak his guilt. Id. at 210-11. The suspect may not be put in the “cruel trilemma” of choosing between self-accusation, perjury, or contempt. Id. at 212."

Link to the case

doctechnical · 11 months

If the passphrase were the admission of a crime (say, shoplifting) then you could say that giving up the passphrase would be a violation of your 5th amendment rights - you'd be incriminating yourself.

I'm not sure how well that would work, but I'd love to see it tried.

ItsAConspiracy · 11 months

Here's a guy on reddit who claimed that using TrueCrypt and taking the Fifth kept him out of prison. Interesting story.

gospelwut · 11 months

The following doesn't apply directly to your question of obstruction of justice, but I figured this was a topical place to share some experiences. Keep in my mind this only applies namely to the U.S.

Useful:

“the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)

I will also say this, as I've said multiple times; don't fully trust the FAQs you read on truecrypt's website. Even though you can technically have a hidden truecrypt volume within another volume, this isn't entirely hidden. Even if you give them the password to the "false" volume, i.e. one filled with pictures of puppies and kittens, that still leaves a lot of questionable space.

Now, they cannot infer just by that "slack" so to speak that something is up, but depending on the questions asked there-after, this could put you into a position to lie. I would not personally recommend lying. Now, yes, you could get lucky and not be asked the right questions, but on the other hand they could contract a forensic examiner with some competence. I know if I was in that situation (retained by plaintiffs), I would most advise them to drill down hard.

Furthermore, while there are many ways to hide your activities, this can vary on operating system. Windows keeps a lot of artifacts from mounted volumes, and you will need to mount these volumes at some point I presume. If I found a reference to a volume "W:\secret_docs\lulz.pdf" that could be a bit odd.

Now, having the appropriate tools to (attempt) to clear your tracks is not illegal in and of itself (especially if this isn't a corporate matter, i.e. you own the computer). Nonetheless, I have seen cases won and lost on a varying array of quality and shitty evidence (or settled).

tl;dr If you really want to be super sure, use a live CD or configure your *nix distro appropriately. Please don't do this if you are planning to commit corporate crime, though, as I will be out of a job.

Shadow703793 · 11 months

If you are like me, have a hidden OS partition you use for the sensitive stuff.

If you have the pre-boot auth method, change the boot message to some thing like "Missing Operating System" to make it much less obvious you have TC/encrypted data. Then play dumb.

frenshy · 11 months

In the UK you are required, by law, to disclose any encryptions keys/pass phrases. Failure to provide these can mean up to two years in prison.

[deleted] · 11 months

According to some governments, yes. Of course, this means that it's now illegal to not have a perfect memory in many places. Beyond fucked up.

rmxz · 11 months

One more way to obfuscate things would be to have a scheduled task that periodically does

 dd if=/dev/random of=/mnt/`od -h /dev/urandom | head | md5sum | cut -c 0-10` count=256k obs=4096

Then if your actual encrypted volume has the same naming convention it'd be hard for them to guess which are even encrypted truecrypt partitions and which are random noise.

And unlike a single truecrypt partition (where they may assume you have 2 passwords), the script itself proves that at least some of those files are random noise.

slmagus · 11 months

I actual wrote a paper on this for one of my Criminal Justice Courses I will look up the information on it when I get home and post more. But the short of it is that you would think that 5th amendment wouldn't apply but hasn't really so far in court cases. Unfortunately there have only been about two relevant and one quasi relevant case in all of US judicial history.

edit: "you would think that 5th amendment wouldn't apply " should be "would"

slmagus · 11 months

so for those who are /r/law geeks look up this case

United States v. Sebastien BOUCHER(WL424718)

aterribleloss · 11 months

best bet... thermite, if they can recover that, then we need to look into what else that person is capable of doing.

dxkf4 · 11 months

Check out some of the talks that have been given by EFF lawyers at some of the cons (HOPE, blackhat, &c). Definitely engage a lawyer if you're basing any REAL decisions on this.

Skyline969 · 11 months

So there are consequences in the UK, and you're protected by the 5th amendment in the US... what about Canada?

stocksy · 11 months

Yes (in the UK).

munky9001 · 11 months

In the UK: You must give up the pass or face prison up for to 2 years. (May or may not be worse depending on what it is encrypted)

What bullshit.

taumeson · 11 months

It depends on which jurisdiction you're in. Sometimes you specifically have to give it up, sometimes and in some jurisdictions you don't.

Enginerd · 11 months

My guess would be they would need a court order to force you to give up the password. Not sure a search warrant would do it (I'm assuming we're talking about the US) but maybe.

Assuming they had that, it would be either obstruction of justice or contempt of court.

iupetre · 11 months

Keepass file inside of a TrueCrypt file is how I roll.

tilio · 11 months

what prevents you from saying you forgot? hell, the judge probably has his password to his computer on a sticky note next to his monitor. half the jury will have the same. online systems use "forgot your password" features because people forget them. unless you go around bragging about how you lied to the cops about forgetting, it'd be near impossible for the state to defeat an "i forgot" defense.

solid7 · 11 months

no, but i'm sure that won't stop the dhs, the doj, and/or some meatstick agent in charge of something that sounds important from trying...

tobsn · 11 months

what i want to know: how do you run an encrypted system from a sd format sized card...

elai · 11 months

How about canada?

SolidSquid · 11 months

The UK isn't quite as clear cut as that, in Scotland you have a right to remain silent as in the US (it comes under Scots Law), so there would be a big question mark over whether they could charge you with this up here. Not sure, but I think I remember Wales being similar (although that might be the NHS, which I think was devolved for both states)

edit: IANAL, so don't take this as legal advice please :p

Brimshae · 11 months

I think I would take the "tragic boating accident" path and say I forgot the password.

"Well then, why didn't you just delete whatever's there?"
"*non-committal shrug*"

Raffster · 11 months

-the beauty about a truecrypt volume is that you cannot prove that it's one...

haywire · 11 months

With RIPA I think there must be reasonable suspicion that you'd have the passphrase.

Nick4753 · 11 months

Re: The United States

It also depends on if it is information pertaining to a corporation or lawsuit. Or if it is part of a civil case in general.

The 5th Amendment applies only to CRIMINAL cases. As part of the discovery process in a civil case or in any instance where the volume contains corporate data you may be compelled to provide the key.

bh28630 · 11 months

It would seem the pertinent case law is a combination of 4th and 5th Amendment. In short, you have a right to privacy and to not incriminate yourself. That said, both clauses are under serious attack post 9/11. The most on point (the 5th) has been decided by two court in two different ways pertaining to the same case. Short version is, the circumstances of the incident are such it was a poor test case. Which is to say, a really serious challenge hasn't come about as yet.

My personal suspicion (based on over 20 years in secure communication and storage) is the current political climate in America renders the 4th and 5th amendments moot. The sitting Supreme Court will not uphold a citizen's rights.

PS: Setting aside legal rights (in a sufficiently motivating situation), expect the enemy to resort to any means including the B's (Bribery, Blackmail, Burglary, Beating, Bonehead). 'Bonehead' refers to gaining access by nefariously tricking someone who should know better into giving the password to the 3rd party (aka social engineering).

errorflux · 11 months

Yes, you will be charged.

No, the judges won't judge you. Most of them are pedo's as well, so don't you worry.

Edit: This comment sounded wrong, i kid you not, a lot of them actually are, almost a statistic event. But more important: Judges are not only the elongated arm of the "brawn" police, a lot of them are actually cool people. But they double morale makes me, and themselves when they get old, sick.

AnythingApplied · 11 months

In the US you can be ruled in contempt of court for withholding your password. As long as you're withholding your password you will remain in contempt. So you will potentially remain in jail indefinitely. I even saw one case where the person claimed to not know their password, so if they were telling the truth they were stuck in jail indefinetly with no chance of reprise.

http://www.google.com/search?q=contempt+of+court+password+encryption

I don't know if any of these cases were using plausible deniability true crypt setup though. Somehow I don't think this will do much unless you actually use the decoy regularly.

you'll need to login or register to do that

create a new account

login