Encryption & New Zealand Law

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#765699 19-Feb-2013 12:21

You are cooperating in the former situation by letting them seize and break open the safe (putting aside the fact that you must cooperate). Why is this cooperation different?

ajobbins

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#765702 19-Feb-2013 12:25

BlueShift: Beacause if you lose, or refuse to hand over, the key/combo to a safe, they can (if they really want to) brute-force it - lock picks, drills, dynamite, etc.
Brute-forcing decent encryption with current tech can take hundreds of years or longer, depending on how paranoid the encryptor is.

But much like failing to hand over a decryption key, could you not be held in contempt of court by refusing to open a safe following a court order to do so?

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ajobbins

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#765707 19-Feb-2013 12:29

PaulBrislen:
Police officer (or similar) serves you with a warrant to search your PC.
Finds encrypted file in a drive somewhere.
Demands you decrypt it.
You say "beats me, I have no idea what that is".
Officer says "you must now accompany me to the station where you will be detained..." etc.

PaulBrislen:
Compare this with a police officer serving a warrant in the real world.

Officer serves you with a warrant to search your house.
Officer searches your house, fails to find a secret room/locked cupboard/obvious collection of guns.
Officer leaves and you go on about your business.

There is no requirement that you incriminate yourself UNLESS you have a computer.

Don't agree with the analogy. In the first example, they find an encryption file, but in your second they don't find a hidden room.

If they search your house and find a hidden room that is locked, they can't see what's in it but may require you to open it (or use brute force to get access)

Similarly, they could search your hard drive but not come across an encrypted file and you go free.

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PaulBrislen

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#765714 19-Feb-2013 12:34

No, you can't be held in contempt for not incriminating yourself.

It's the job of the police to prove their case against you (well, the job of the crown prosecutors based on police-gathered evidence). You don't have to say a word if you don't want to and rightly so. For many years this wasn't the case and people were arrested, tried and often executed based on not being able to prove they didn't do something.

The right to a fair and free trial is vital in any civilised society. You should be able to stand up before a judge and have a judge say "they haven't proved their case against you" without having to "prove" you didn't do something.

PaulBrislen

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#765716 19-Feb-2013 12:36

ajobbins:
PaulBrislen:
Police officer (or similar) serves you with a warrant to search your PC.
Finds encrypted file in a drive somewhere.
Demands you decrypt it.
You say "beats me, I have no idea what that is".
Officer says "you must now accompany me to the station where you will be detained..." etc.

PaulBrislen:
Compare this with a police officer serving a warrant in the real world.

Officer serves you with a warrant to search your house.
Officer searches your house, fails to find a secret room/locked cupboard/obvious collection of guns.
Officer leaves and you go on about your business.

There is no requirement that you incriminate yourself UNLESS you have a computer.

Don't agree with the analogy. In the first example, they find an encryption file, but in your second they don't find a hidden room.

If they search your house and find a hidden room that is locked, they can't see what's in it but may require you to open it (or use brute force to get access)

Similarly, they could search your hard drive but not come across an encrypted file and you go free.

If they find the hidden room (or gun safe or whatever) they can seize it. If you refuse to open it they can break in. The same basic rule should apply to computers but instead you are required by law to give them access to the computer.

I'd be quite happy if the former applied. I can either help (don't break it, I'll unlock the door) or not as I see fit. With my computer I have no choice - open the file or go to jail.

ajobbins

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#765719 19-Feb-2013 12:39

PaulBrislen:
If they find the hidden room (or gun safe or whatever) they can seize it. If you refuse to open it they can break in. The same basic rule should apply to computers but instead you are required by law to give them access to the computer.

But in this case the 'house' is the 'computer' and the 'safe room' is the 'encrypted file'. You have to give them access to the house/computer, no choice. But if they fail to find the safe room/encrypted file once they are in the house/computer, all the better for you.

PaulBrislen:
I'd be quite happy if the former applied. I can either help (don't break it, I'll unlock the door) or not as I see fit. With my computer I have no choice - open the file or go to jail.

I'm sure if you built an impenetrable safe room that they found and then you refused to open it they'd send you to jail, too.

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1080p

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#765786 19-Feb-2013 14:19

Interesting discussion, guys.

I can see from a common sense point of view why the law is written the way it is. Cracking current encryption is impossible when configured correctly so of course the law is going to have to require you hand over they keys.

Despite your building ability, you can't build an impenetrable secret room to hide your drugs/guns etc... which is why the law dos not bother to require you provide access to secret rooms and so on.

This does not mean I agree with the concept. I think providing access to my systems should not be required by law by the threat of contempt of court.

I suppose a hidden volume would be the way to go in this instance (assuming you were one wanting to hide something) as a court would order you to decrypt the drive, you would provide a key for the decoy drive and proving that you have provided a decoy key would be incredibly difficult.

Normally being held in contempt of court involves being imprisoned by the judge until you change your mind. Is there a limit on the amount of time a judge can hold you in prison in New Zealand?

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ajobbins

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#765790 19-Feb-2013 14:28

1080p: I can see from a common sense point of view why the law is written the way it is. Cracking current encryption is impossible when configured correctly so of course the law is going to have to require you hand over they keys.

Despite your building ability, you can't build an impenetrable secret room to hide your drugs/guns etc... which is why the law dos not bother to require you provide access to secret rooms and so on.

While yes they can break in eventually, a search warrant alone is an instruction from the court for you to open that room (Regardless of it's presence being known at the time the warrant was issued). I'm sure they could hold you in contempt if you chose not to open the room. Especially if breaking in was going to take a long time.

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1080p

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#765791 19-Feb-2013 14:29

PaulBrislen: We lost the "right to remain silent" as such many years ago, following the 911 attacks in the US.

At the time the new cyber-terrorism bill (as it was called) included a section on encryption that was passed into law without any problem whatsoever (only terrorists keep secrets, you see).

Judge David Harvey told me about it in 2003: No right to silence for computer users.

Basically it works like this:

Police officer (or similar) serves you with a warrant to search your PC.
Finds encrypted file in a drive somewhere.
Demands you decrypt it.
You say "beats me, I have no idea what that is".
Officer says "you must now accompany me to the station where you will be detained..." etc.

Great way to upset your buddies and get them locked up - install some encrypted file while they're not looking then dob them in. Hilarity ensues!

Compare this with a police officer serving a warrant in the real world.

Officer serves you with a warrant to search your house.
Officer searches your house, fails to find a secret room/locked cupboard/obvious collection of guns.
Officer leaves and you go on about your business.

There is no requirement that you incriminate yourself UNLESS you have a computer.

how ridiculous.

Oh, nice! Thanks for the insight. I didn't realise it had been so long that this was an issue. I think that so much legislation after that terrorist attack was a knee jerk.

1080p

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#765794 19-Feb-2013 14:30

ajobbins:
1080p: I can see from a common sense point of view why the law is written the way it is. Cracking current encryption is impossible when configured correctly so of course the law is going to have to require you hand over they keys.

Despite your building ability, you can't build an impenetrable secret room to hide your drugs/guns etc... which is why the law dos not bother to require you provide access to secret rooms and so on.

While yes they can break in eventually, a search warrant alone is an instruction from the court for you to open that room (Regardless of it's presence being known at the time the warrant was issued). I'm sure they could hold you in contempt if you chose not to open the room. Especially if breaking in was going to take a long time.

If you said you lost they key to the room (and it was in a safety deposit box or a friend's place) they would not imprison you though. They would simply drive in the bulldozer.

1080p

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#765796 19-Feb-2013 14:32

timbosan:
Judge David Harvey told me about it in 2003: No right to silence for computer users.

I wish Judge Harvey was a member here on Geekzone, the guy is very smart and really sets the stage for how the legal system in NZ can embrace and understand technology. If you ever have a chance, read his papers.

Where is he published? Does he lecture for a university or something?

ajobbins

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#765800 19-Feb-2013 14:37

1080pIf you said you lost they key to the room (and it was in a safety deposit box or a friend's place) they would not imprison you though. They would simply drive in the bulldozer.

Perhaps, because the bulldozer is the path of least resistance. I'm sure they could imprison you if they wanted to, especially if they had good reason to believe you were lying (Maybe you were seen locking it up as they broke the door to your house down, or something you were known to have in your possession recently was locked in there).

In the same way that if they genuinely believed you had forgotten the encryption key they could choose not to lock you up.

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SaltyNZ

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#765802 19-Feb-2013 14:39

1080p:
Oh, nice! Thanks for the insight. I didn't realise it had been so long that this was an issue. I think that so much legislation after that terrorist attack was a knee jerk.

Not a knee jerk. An excuse. Governments invariably want more power to pry into your private lives than they have. You will never see a government vote to decrease their powers. Historically, getting that to happen requires a revolution.

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russelo

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#765852 19-Feb-2013 15:47

I suppose a hidden volume would be the way to go in this instance (assuming you were one wanting to hide something) as a court would order you to decrypt the drive, you would provide a key for the decoy drive and proving that you have provided a decoy key would be incredibly difficult.

Is a hidden volume enough to acquit you? What if the judge is smart enough to know this feature and requires you to hand over the second key? There's no way to prove if there is indeed a hidden volume, can you still be held in contempt for not providing the key to a 'only you knows' existing or non-existing hidden volume?

ajobbins

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#765853 19-Feb-2013 15:51

russelo: Is a hidden volume enough to acquit you? What if the judge is smart enough to know this feature and requires you to hand over the second key? There's no way to prove if there is indeed a hidden volume, can you still be held in contempt for not providing the key to a 'only you knows' existing or non-existing hidden volume?

The difference is that there is no argument that there is an encrypted volume. They can therefore require you to hand over the key.

With a hidden volume they can't know that it is (or isn't) there. If you hand over the key to the 'good' volume, there is nothing more they can do or ask of you.

Suggesting that there was a hidden volume would be conjecture.

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