Porn, passwords and rights in the Internet age

[Setesh]

The last part says that another law used to convict someone with virtual child porn was overturned by the appeals court and will be on the SCOTUS docket for 2007-2008. However, given their previous 2 rullings it seems like the law will remain unconstitutional....

So is there anyone here that knows law and can clear this up for us? Have I missed something obvious?

Allow me, The Supreme Court ruled since there were no victims there was no crime under the child porn law.

Bush pushed the 'Amber Alert Law' through which criminalized it again.

The 11th circuit court declared the section of the law that dealt with it was too broad to be constitutional which effectively legalized it again.

The Dept of Justice is going back to the court to appeal to get it declared constitutional again. But the court date hasn't happened yet so its up in the air. If that fails they have to go to the Supreme Court which will probably shoot it down again since its circumventing an earlier ruling.

They, however, have ruled that drawn loli/shotacon on your hard drive can be used as probable cause to search for the real stuff.

[Alyrium Denryle]

If he witholds the password and gets contempt of court and it takes about 10 years to crack the password, would they be able to come after him after 10 years with the new evidence? I don't see how it would be double jeopardy since he wouldn't quite be charged with the same crime twice.

Statute of limitations would have expired. As would his right to a speedy trial. They would have to dismiss the charges, probably with prejudice so he could never be charged again

[Darth Wong]

To put it another way, it is not up to the defendant to aid the prosecution in any way.

Wrong. If it were a physical piece of evidence, he would be compelled to turn it over and you would have no argument against it. You are simply confusing the password with a self-incriminating statement just because they're both word-based. If it was the combination to an impenetrable safe containing physical evidence, would you still make this "right to stay silent" argument?

The police are allowed to break it open, and they're free to brute force the password too...it's not unbreakable...no safe is either...they're both just measured in how long it takes to crack them.

Leaving aside legalistic bullshit which I have never been a fan of, do you think this is actually a wise policy? Ethically speaking, even if you feel it is reasonable to give people a right to refuse to testify about committing crimes, why do you think people should be able to conceal evidence from the court with impunity? Let's look at the net outcome of your preferred policy: smarter criminals get away with it.

[CmdrWilkens]

This is one of those fine legal line situations and it goes back to whether this is a key or a combination. If it is a key then the password is merely a physical guardian and conveys no actual information (thus there is no testimony from the defendant). If it is a combination then providing the combination is providing informaiton to the prosecution which is prohibited.

Now here is where it gets real dicey assuming that the password is a combination. If the information was not encrypted when it was viewed originally then encrypting it becomes obstruction of justice as it is willful concealment of evidence (they still can't get in but you can get the guy with obstruction). If it was already encrypted then he revealed the password and is now refusing to give the password then they lierally have nothing on the guy because he does have a right to become silent at any point: that is he can say as much or as little as he chooses but retains the right to stop speaking at any time and no previous amount of speech/testimony can be used to force a continued revelation.

So anyway it all comes back to key versus combination. If the password is a key then he can be compelled to surrender it (and it becomes contempt and obstruction when he doesn't). If it is a combination then divulging it is testimony. Take this analogy. If I have killed someone and buried them in a massive graveyard on my property then I certainly know where the body is. The court can compel me to grant access to my property and allow a search through the property HOWEVER it cannot compel me to divulge where the body is buried or what means I have available to bury a body as either question can implicate me. In this case there is almost certainly a "body" (the agent witnessed the body being buried by me) and the court knows it is in the graveyard/computer. Thus the court can order the guy to open the computer to examination but it cannot request the location of the body or the means by which I may have buried the body as either one is testimony which I am priveledged to withold.

Do I like the outcome? Hell no. That said there are two witnesses which can testify that there was child porn on the computer so there is still a circumstantial case (which would likely provide a guilty verdict and another three years or so of appeals). Moreover if the information was encrypted after the initial discovery then there is a case for obstruction which is pretty clear cut.

[Mr Bean]

I don't like it, but legally it does fall under fifth amendment grounds according to precedent. Legally, giving away this password would result in his incrimination, despite how loathsome his crime is, he's still entitled to his rights.

But something tells me, they simply should have used the intial probable cause to search his home for more evidence. Surely this is not the only CP he owns, or see if they can get internet search records. Hell we have all sorts of fun formerly illegal methods of getting access to his personal life thanks to Bush and co. Why not use them in this case?

[Jadeite]

The guy had better hope his password isn't easily guessable.

[loomer]

Knowing America, it's either going to be something tricky like a random string of numbers and letters...

Or it's going to be something incredibly obvious but unlikely like 'kiddyfiddler'.

[Oni Koneko Damien]

Retard, could the answer to "what is the password?" be used to convict him?

No. He's not being charged with having a password protected computer.

He's being charged with possession of child pornography that police already know is on the computer.

It's not like they're asking for his password so they can check to see if he has child pornography on his computer. They already know its there, and thus he can't self incriminate because the evidence has already been secreted.

Question: Is 'evidence' still 'evidence' if the prosecution is unable to present it? Maybe I'm just being stupid here, but if you cannot present something in court, it is not considered evidence, right? So wouldn't any argument revolving around 'They already have the evidence' fail because technically until they get that password, or crack it themselves, they *don't* have evidence?

[Darth Wong]

They already have some evidence. What they want is access to more evidence that they know is on that laptop.

[Nova Andromeda]

Leaving aside legalistic bullshit which I have never been a fan of, do you think this is actually a wise policy? Ethically speaking, even if you feel it is reasonable to give people a right to refuse to testify about committing crimes, why do you think people should be able to conceal evidence from the court with impunity? Let's look at the net outcome of your preferred policy: smarter criminals get away with it.

-The trade off is between some criminals getting away with crime and the gov. having more power to abuse. In virtual world where the gov. doesn't abuse it's power your position is fine, but this is the U.S. we're talking about.
-In the real world, the U.S. legal system is broken and can't even protect people from being tortured by the gov. in secret with no reasonable recourse. Until the fundamental problems in the system are fixed and something is setup to prevent future abuse, I think it would be very unwise to yield on this issue and gut the 5th amendment. The ability to compel a person to incriminate themselves via massive penalties is no small power.

[Darth Wong]

-The trade off is between some criminals getting away with crime and the gov. having more power to abuse.

Thank you for the bog-standard knee-jerk libertarian American answer. Now show me exactly what the negative outcome of this would be, instead of vague handwaving about government abuse. Exactly what's going to happen here? The government, armed with a search warrant ... would be able to execute it! OMG, the sky is falling! Individual liberties are being destroyed! Police state! RARRRR!!!

[Covenant]

The PROTECT act has always confused me a little because, as an artist, I could concievably create such materials either using 3D animation or hand-drawn. At what point during the creation of an illegal drawing does it become illegal? Banning it because it contributes to a culture of abuse seems reasonable, but the idea of a drawing having an age of consent seems absurd. It's a pretty untenable position because it opens up a lot of other questions about what you depict contributing to real enactments. It leads us back down the road of "violent images make violence happen" and such things, since if we are banning anime depicting sex between minors (probably the least offensive variety), do you also ban the Nabokov novel that game this a name? Do you ban cartoons in which people get shot? And so on. That's off-topic, but it just came to mind, since you'd think, then, that the artist who could have created these anime--but stopped himself as he was putting his pencil to paper--was committing some sort of conspiracy to commit a crime, along with his inker, painter, and publisher.

[Kamakazie Sith]

Question: Is 'evidence' still 'evidence' if the prosecution is unable to present it? Maybe I'm just being stupid here, but if you cannot present something in court, it is not considered evidence, right? So wouldn't any argument revolving around 'They already have the evidence' fail because technically until they get that password, or crack it themselves, they *don't* have evidence?

Yes, it is still evidence. Evidence is something that can prove or disprove an issue. In this case the courts know of its existence because a law enforcement officer actually saw those pictures on the laptop.

However, you're right they don't have access to the evidence.

[Darth Wong]

It's interesting that people don't shy away from the "impregnable safe" example. By this logic, a rich person who can afford a far more secure safe than a poor person actually deserves superior protection under the law.

And what about killers being compelled to reveal the locations where they buried the bodies? I suppose that's a violation of their rights too?

[Einhander Sn0m4n]

It's interesting that people don't shy away from the "impregnable safe" example. By this logic, a rich person who can afford a far more secure safe than a poor person actually deserves superior protection under the law.

It does make ultimate sense in this age of ultracapitalism. The rich have rights the poor don't, and it's so ingrained in the American psyche that even here the repugnant notion rears its damned head.

[Alyrium Denryle]

And what about killers being compelled to reveal the locations where they buried the bodies? I suppose that's a violation of their rights too?

They cant be, actually. They can sometimes be convinced to, especially if there is a plea agreement involved. But last I checked they cannot be compelled to reveal the location of bodies.

[Alyrium Denryle]

It's interesting that people don't shy away from the "impregnable safe" example. By this logic, a rich person who can afford a far more secure safe than a poor person actually deserves superior protection under the law.

It does make ultimate sense in this age of ultracapitalism. The rich have rights the poor don't, and it's so ingrained in the American psyche that even here the repugnant notion rears its damned head.

I would say that the law itself does not offer them superior protection. Their means do. It is a subtle difference but a difference nonetheless.

[Darth Wong]

And what about killers being compelled to reveal the locations where they buried the bodies? I suppose that's a violation of their rights too?

They cant be, actually. They can sometimes be convinced to, especially if there is a plea agreement involved. But last I checked they cannot be compelled to reveal the location of bodies.

Do you think that is an ethically acceptable situation? At what point does the clash between ethics and constitutionality become so obvious that even an American must admit to it?

[Alyrium Denryle]

And what about killers being compelled to reveal the locations where they buried the bodies? I suppose that's a violation of their rights too?

They cant be, actually. They can sometimes be convinced to, especially if there is a plea agreement involved. But last I checked they cannot be compelled to reveal the location of bodies.

Do you think that is an ethically acceptable situation? At what point does the clash between ethics and constitutionality become so obvious that even an American must admit to it?

Is it ethical? No. In this particular case it is not. However I would say it is a necessary evil. If we make exceptions in particular cases in regard to the legal system, the rules of evidence become meaningless. We destroy meaningful due process. If we do it, then at some point, because we use a precedent system in our law and have for the past 200 years, some lawyer will use it to argue that we can make other exceptions, and eventually by incremental steps, we will be faced with forced confessions. "You can either go to jail for contempt for refusing to answer the question, or you can incriminate yourself"

It is not a slippery slope because it has happened historically. I have seen imprisonment without trial during wartime justified by the fact that we did it to the Japanese in WW2. Civil rights abuses I have seen happen currently have been justified by references to historical civil rights abuses. For example the Alien and Sedition Acts.

A particular case like the one you describe is unethical. But if we t an exception to the rules of evidence, the consequences of that decision could be far reaching and dangerous. And I think, they are more harmful than the consequences of not allowing the decision to be made

Of course, then there is the legal argument that even if I DID think that exception should be made, our government simply does not have the power to change it legitimately without amending the constitution.

[Darth Wong]

They cant be, actually. They can sometimes be convinced to, especially if there is a plea agreement involved. But last I checked they cannot be compelled to reveal the location of bodies.

Do you think that is an ethically acceptable situation? At what point does the clash between ethics and constitutionality become so obvious that even an American must admit to it?

Is it ethical? No. In this particular case it is not. However I would say it is a necessary evil. If we make exceptions in particular cases in regard to the legal system, the rules of evidence become meaningless. We destroy meaningful due process. If we do it, then at some point, because we use a precedent system in our law and have for the past 200 years, some lawyer will use it to argue that we can make other exceptions, and eventually by incremental steps, we will be faced with forced confessions. "You can either go to jail for contempt for refusing to answer the question, or you can incriminate yourself"

It is not a slippery slope because it has happened historically. I have seen imprisonment without trial during wartime justified by the fact that we did it to the Japanese in WW2. Civil rights abuses I have seen happen currently have been justified by references to historical civil rights abuses. For example the Alien and Sedition Acts.

A particular case like the one you describe is unethical. But if we t an exception to the rules of evidence, the consequences of that decision could be far reaching and dangerous. And I think, they are more harmful than the consequences of not allowing the decision to be made

Of course, then there is the legal argument that even if I DID think that exception should be made, our government simply does not have the power to change it legitimately without amending the constitution.

You realize that your entire argument here is predicated upon the assumption that it is impossible to deal with it in any manner other than making a single subjective exception to the rules, don't you? It is a very American trait to assume that constitutional rules are written in stone and cannot be questioned, hence your assumption that I was talking about making a one-off exception to otherwise untouchable rules.

[Alyrium Denryle]

You realize that your entire argument here is predicated upon the assumption that it is impossible to deal with it in any manner other than making a single subjective exception to the rules, don't you? It is a very American trait to assume that constitutional rules are written in stone and cannot be questioned, hence your assumption that I was talking about making a one-off exception to otherwise untouchable rules.

The same argument applies if you make a general exception in the legislature or a one-off exception in a court room. The players just change. From a lawyer and a judge interaction in the case of a on-off court exception, to congress in the case of a general exception. For example, the PATRIOT act and its continued renewal and spin offs. We made exceptions to our long standing rules of evidence post 9/11. And this has opened the door, not just legally, but societally for other exceptions to be made.

"We have already done X, lets expand it and do Y and subsequently lets expand XY and do Z"

What has that gotten us just after 9/11? It has gotten us warrantless wiretaps, military commissions, torture, trial-free imprisonment of US citizens and legal residents, and the suspension of Habeus Corpus.

I view the rights in the constitution as social constructs. They do not exist concretely as a metaphysical quality of humanity like many of my fellow americans think they do. But they are usefull, and I fear the social consequences of playing fast and loose with them. In terms not only of individual liberty, but social and criminal justice as well.

[Kamakazie Sith]

I think the idea behind the 5th amendment was not to protect people who are actually guilty. It's about not being able to force information out of people who are suspected of a crime.

This isn't the case with the person in this story. The illegal pictures were seen on his laptop, and now he's just hiding evidence that is known to exist. The laptop isn't suspected of having evidence. It is known to have it. That's the difference here, and I hope that the higher courts will see that.

I'd like to see anyone come up with a realistic risk that ruling against this man would cause.

Remember, we're not talking about someone who is suspected of committing a crime, nor are we talking about a suspected location of evidence. Both of those questions are known at this time.

[Alyrium Denryle]

I think the idea behind the 5th amendment was not to protect people who are actually guilty. It's about not being able to force information out of people who are suspected of a crime.

This isn't the case with the person in this story. The illegal pictures were seen on his laptop, and now he's just hiding evidence that is known to exist. The laptop isn't suspected of having evidence. It is known to have it. That's the difference here, and I hope that the higher courts will see that.

I'd like to see anyone come up with a realistic risk that ruling against this man would cause.

Remember, we're not talking about someone who is suspected of committing a crime, nor are we talking about a suspected location of evidence. Both of those questions are known at this time.

The thing is, they think it is there, but at this point, and as far as the legal system is concerned, they cant prove it exists. Rationally, we all know it is there, sort of like how we all know OJ was guilty. But legally...

[Kamakazie Sith]

The thing is, they think it is there, but at this point, and as far as the legal system is concerned, they cant prove it exists. Rationally, we all know it is there, sort of like how we all know OJ was guilty. But legally...

No, they know it's there because the Federal Agent saw it.

Your OJ example would be valid if a police officer saw OJ with the knife and then watched him throw it in a state of the art safe with a combination lock for which only OJ knew the code.

Also, the OJ case was a bust because the lead detective turned out to be a racist asshole who lied on the stand giving those involved plenty of reasonable doubt.

[Alyrium Denryle]

The thing is, they think it is there, but at this point, and as far as the legal system is concerned, they cant prove it exists. Rationally, we all know it is there, sort of like how we all know OJ was guilty. But legally...

No, they know it's there because the Federal Agent saw it.

Your OJ example would be valid if a police officer saw OJ with the knife and then watched him throw it in a state of the art safe with a combination lock for which only OJ knew the code.

Also, the OJ case was a bust because the lead detective turned out to be a racist asshole who lied on the stand giving those involved plenty of reasonable doubt.

Pfft! You know what I mean. The agent allegedly saw it. lets not forget about the presumption of innocence