Fwd: It's time for PGP to die.

[Bob Holtzman]

On Mon, Aug 18, 2014 at 10:43:49PM -0400, Robert J. Hansen wrote:
> 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."

Which, of course, carries the implied threat of not reducing it to ten
counts and objecting to concurrency if he doesn't come across with the
keys. 

Not coercion?

> 
> 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.)

...and if the prosecutor is hungry for another conviction to aid in his
political ambitions it's Katy bar the door and the hell with the
truth.

BTW what's an Alford? 

> 
> 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,

So is hiding exculpatory evidence. Of course prosecutors would never do
such a thing, right?....right?

> and wil get an attorney disbarred.

If caught. Some were caught and are still practicing. It made the
papers.

http://usatoday30.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm
http://reason.com/archives/2009/08/17/innocent-man-freed-but-shabby 

There are a bunch more.

> Don't confuse "Law & Order" re-runs with
> real life.  

Give me some credit, pal.

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.

What should be and what is isn't always the same.

> 
> > 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.

Of course not. Some prosecutors are real, live, human beings with
consciences. Others.......<pregnant pause>

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



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-- 
Bob Holtzman
Giant intergalactic brain-sucking hyperbacteria 
came to Earth to rape our women and create a race 
of mindless zombies.  Look!  It's working!
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