Fwd: It's time for PGP to die.

Robert J. Hansen rjh at sixdemonbag.org
Tue Aug 19 04:43:49 CEST 2014

On 8/18/2014 9:32 PM, Bob Holtzman wrote:
> There are quite a few ways police and prosecutors can coerce a 
> suspect to hand over his encryption key(s).

Your examples which involve coercion are illegal, and the ones that are
legal do not involve coercion.

> Dangling the prospect of a lighter sentence under the poor bugger's 
> nose

Not coercion.

Prosecutor: "We know you have an encrypted drive partition with a lot of
child porn on it.  Give up your passphrase and we'll reduce it to ten
counts of possession and drop the intent to distribute, and we won't
object to sentences running concurrently."

Defendant: "... that sounds really good."

Or, alternately, imagine the defendant is innocent of the charge:

Defendant: "I can't accept that deal.  I'm innocent of that."  (True: if
you're innocent of the charge, you're not allowed to plead guilty to it.
 You might be able to talk the judge into accepting an Alford, but it'd
be an uphill battle.)

Or, alternately, imagine the defendant is guilty, but only of eight
counts of possession:

Defendant: "No deal.  I'll take my risks in court.  Good luck producing
these 'thousands of images' you're talking about."

> or conversely, threatening to come down hard, perhaps going for a 
> death penalty.

Grossly illegal, in violation of the canons of legal ethics, and will
get an attorney disbarred.  Don't confuse "Law & Order" re-runs with
real life.  The DA is allowed to threaten prosecution of only those
crimes the DA reasonably believes a person violated, and the DA is
expressly forbidden from using the threat of the death penalty to
persuade someone to taking a lesser sentence.

> The surrender of a suspect's keys would be "voluntary" and therefore 
> constitutional.

In your first example yes, in your second example no.

Don't get me wrong: prosecutors have a lot of power, and I personally
believe they have too much power with too little accountability.
However, it's not a de-facto state of tyranny, either.

As always, my best advice for people facing legal problems is "shut up
and get a lawyer."

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