There's no observable difference between inability to produce a result and refusing to produce a result. How do they know he didn't just forget the password? Or that the password was recorded somewhere that he no longer has access to? After sitting in jail for many months, it is very easy to forget a password that you no longer use regularly.
There's also no directly observable difference between killing with or without intent, which is why we have murder trials. The ability to decrypt data can be inferred from the surrounding circumstances, which is what happened here[1]:
> The defendant did not testify at the hearing and did not offer any other evidence or testimony in support of his contention that memory failure prevented him from complying with the court's order. On September 14, 2015, the court issued an order granting the government's motion, App. 6-10, finding that Doe was engaged in a “deliberate ruse” in claiming memory failure as to the external hard drives and that he intentionally disobeyed the court's orders directing him to decrypt the devices.
Yes, the court system exists precisely to determine fuzzy things like this.
I'm still curious, what kind of evidence or testimony might be considered believable in this case. Whether someone remembers a particular sequence of words and symbols seems like a thing that's very hard to determine, and by its nature it's unlikely there is any evidence either way.
From the quote you give (and I'll admit I have not read up on this case beyond the article, so it's possible I'm missing something), it sounds like he claimed he didn't remember the password, the court responded with "I don't believe you because you haven't proven that you don't remember it, so have fun in jail until you decrypt."
How would you prove, if you were brought into court, that you don't remember a specific password?
By giving credible oral testimony. The defendant chose not to do that, perhaps because it would have exposed him to cross-examination, and perjury charges if his implausible story was rejected (he remembered other passwords and had been caught with child pornography on other encrypted volumes, and the government may have had evidence about how recently and frequently he had decrypted the external drive, because they were able to decrypt his OS drive). Hopefully, if you really did forget a password you'd be able to give a believable explanation that holds up under cross-examination.
So the system as it stands is you can be jailed indefinitely because a judge does not believe you actually forgot a password? That doesn't sound ideal.
He gave no testimony, so there's nothing to disbelieve. Everyone has the right to not self incriminate, but that's not a get out of jail free card.
Honestly, what do you envision as an ideal system? The legal system can't be structured like software. You have to be able to cope with unknowns, things that cannot be proven 100%, and people who won't cooperate. This stuff isn't binary.
Regardless of cooperation I disagree with indefinite detention. Write a law that requires you to hand over a key to law enforcement(this will likely require a constitutional amendment) with a specific penalty or follow the constitution as written.
civil law / roman law, as used in a large part of the world including Europe. (different from civil law as the term is used in the US)
things are quite a lot more clear cut if you just codify (yes, exactly like code, our law books look like code in human language, precisely worded) instead of reinterpreting the law on case by case basis and some ancient writings reinterpreted to fit a modern setting (even they were made by smart folks, it's still almost religion)
This doesn't answer the parent's point. Most cases turn on the facts, even in civil law systems. Defendants still get locked up when judges don't believe them, and judges can still get the facts wrong.
Most U.S. federal law is codified, including the contempt provision that applied here (18 U.S. Code § 401). Codification does not remove the need for courts to resolve ambiguities. The constitutional right in this case is a good example: there is no explicit privilege against self-incrimination in the European Convention on Human Rights, yet the European Court of Human Rights has found that Europeans do have this right, and has explained its scope by 'reinterpreting the law on a case by case basis' [1].
If I ask you to sink 10 baskets and then 0 baskets are made, there is an extremely obvious difference between 10 airballs and refusing to step onto the court.
Stop thinking like a software engineer and start thinking like a human observer. The court system does not use Jenkins to test conditions in the real world - the court system's "runtime" are the faculties of observation and reason of the judges and juries. There are countless, extraordinarily obvious differences between refusing to comply with an order and complying with an order but failing to produce the desired result. In other words, humans do not judge compliance based on satisfaction of test conditions that have to be written down and then run by a computer - they use their own eyes, ears and brains.
As a result, the difference between genuinely not remembering a password or trying, but failing, to decrypt a drive, is totally and obviously different than telling a judge to take a hike, claiming "fifth amendment" or giving testimony that is obviously untruthful. Frankly, this statement:
> There's no observable difference between inability to produce a result and refusing to produce a result
Is just outrageous. There is no difference between failing to detect the higgs boson and not even trying to detect it? I posit that these two scenarios are outrageously different: (1) building the LHC and not finding the higgs boson and (2) not buidling the LHC. Both situations have failed to detect the higgs boson - but they are, in all other respects, remarkably different. I genuinely cannot believe that you hold this point of view to be true.
I disagree, and the court system is predicated on this idea.
Judging the credibility of testimony is not only one of the primary activities of judges and juries, but, again, I categorically do not believe that you truly believe there is no difference, whatsoever, in indicia or outward evidence, between telling a lie and telling the truth. It's not a remotely credible position to take. It is absolutely the case that humans can be very bad at judging the difference between lying and telling the truth, but the assertion that there is no observable difference is nonsense. It is the reason there are such a thing as "good" actors and bad actors. It is the reason that athletic events in movies are staged, as opposed to actually performed. It is why special effects exist.
Additionally, these judgments are made in context. You aren't judging the atomic, context-less testimony of a spherical witness on a perfectly cubical witness stand suspended in an infinite vacuum. You are judging a human, sitting in a court, in the context of a whole host of other evidence and testimony. So, basically, you are making one of two claims: (1) that humans cannot judge the difference between truth and lies and (2) that it is improper for humans to make these judgments in the context of criminal justice. I disagree with both, but in this case all that matters is the latter - I will cede that it is often the case that humans mess up on individual judgments, but this does not mean that putting humans in charge of these decisions is not the best option we have when it comes to criminal justice.
What you are pointing out is that justice gets tested at the edge cases - and what we have here is an edge case. I understand the engineer's desire to have proof-positive, objectively testable indicia to differentiate between different case-states - in this instance, the difference between being a convincing liar and telling the truth - but that is the central reason we have a court system that is populated and run by humans and not machines. Our "best guess" is what it comes down to. This does, in fact, result in miscarriages of justice - there are supposed to be correcting mechanisms built into this system to compensate for this as well, and the general release-valve for these errors is the idea that you are supposed to be innocent until proven guilty. We have, in fact, stumbled upon a bug in this system here - judges can incarcerate individuals for contempt indefinitely, and this should not be the case. There are other factors going on in this circumstance that render the issue more complicated, and there are ways to address this bug with procedure - hearings, appeals, evidentiary testimony or expert testimony - but to simply state that the solution is to make the system recognize that it is impossible to tell the difference between truth and lies is an absurd notion that totally undermines its very foundation. It is not just throwing the baby out with the bath-water - it is then bulldozing the house too.
It is a primitive, or axiom, of the court system, that humans can be asked to make value judgments about the truth and falsity of assertions presented to them and to judge the veracity of the witnesses making those statements. If you categorically disagree with that axiom, you disagree with the entire jurisprudence system. In this case, I'd like to quote Churchill, when talking about Democracy:
"It's the worst form of Government, except for every other."
If you have a better idea about how to run the court system, I'm all ears.
In my attempt to be clear about the piece of your rant I was calling attention to, I was imprecise. Your previous comment had been directed at asserting there was obviously a difference between someone verbally stating refusal and someone attempting to comply. I can see how you could choose to read that into what the other poster said, but it is not a charitable interpretation.
> There's no observable difference between inability to produce a result and refusing to produce a result.
I don't see how that is open to interpretations, regardless of charitability. I think it is total, unabashed poppycock.
> How do they know he didn't just forget the password? Or that the password was recorded somewhere that he no longer has access to?
Credible testimony and other evidence.
> After sitting in jail for many months, it is very easy to forget a password that you no longer use regularly.
Right, and that is not the issue. Obviously the judge did not find this guy to be credible in the first instance.
That having been said, I'm a corporate lawyer, so my apologies if I was unnecessarily aggressive in my reply to your post. It is something I always have to watch out for, but your points are appreciated and thanks for taking the time to engage.
> I don't see how that is open to interpretations,
I can see a few things the author might be trying to convey. The most interesting would probably be "[There are cases where t]here's no observable difference [...]". I think the alternative I suggested ("[...] produce a result while pretending not to.") is better supported as the authors probable intent (while being a stronger statement and correspondingly less likely to be accurate).
In any case, pragmatics + charity should tell us someone wasn't asserting we can't tell the difference between a person saying "I can't" and a person saying "I won't", and if you can't figure out what else they might have meant the first thing to do is ask.
> it is very easy to forget a password that you no longer use regularly.
Heck, some weeks ago I forgot part of a passphrase I did use regularly. Fortunately, I remembered enough of it that I could feasibly brute force the rest.
