British man arrested for…not giving the police his computer password
posted at 12:13 pm on October 7, 2010 by MadisonConservative
Want to piss off the cops? Have a 50-character password on your laptop.
Oliver Drage, 19, of Liverpool, was arrested in May 2009 by police tackling child sexual exploitation.
Police seized his computer but could not access material on it as it had a 50-character encryption password.
Drage was convicted of failing to disclose an encryption key in September. He was sentenced at Preston Crown Court on Monday.
Drage was arrested when he was living in Freckleton, Lancashire, but later moved to Liverpool.
He was formally asked to disclose his password but failed to do so, which is an offence under the Regulation of Investigatory Powers Act 2000, police said.
Yes, he was taken down by a police unit going after kiddy porn. However, for this discussion, let’s remember that their case appears to hinge on accessing his private property. They’re unable to do so, and until they do, what they have seems to be minuscule if they’re willing to jail him for not handing them their evidence. Let’s also take into account that we’re talking about Britain, where rights are an afterthought as the cameras stare at your every move.
Not being a legal expert, I’m unsure what US law says about password-protected laptops, particularly with encryption. They have their own resources to crack them, of course, but what about in these more advanced cases where the accused has sufficient knowledge to throw up this kind of security? Do warrants apply to private computers, including encrypted materials? Suppose the accused were to throw a magnet on their hard drive(assuming it wasn’t a solid state drive)…could they be charged?
Most interestingly, if the guy were a Muslim, and claimed religious persecution, what would be the outcome?
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I would guess that in the US, the right against self-incrimination would allow you to refuse to reveal a password, but if they had a warrant, they could try to hack it.
Vashta.Nerada on October 7, 2010 at 12:21 PM
I think it’s only a matter of time, with “net neutrality” and invasive police searches, before almost all net traffic will be encrypted. It won’t look very different, but the server load will be a bottleneck.
cthulhu on October 7, 2010 at 12:26 PM
Interesting. Not sure about cyber-related crimes intersecting issues of property, particularly there. If the offense occurred online, would that mean the tool used (the laptop) is as relevant as, say, a weapon in a more traditional crime? It’s tricky. The article doesn’t even mention how, exactly, the authorities busted him. One would hope they had sufficient reason to believe that laptop contained evidence and/or the “scene of the crime.”
Bee on October 7, 2010 at 12:34 PM
As Bee said, I was under the impression that they had reason to believe that the laptop contained evidence that would be used in the case. That may not be the situation though, and I may just be giving them the benefit of the doubt.
All the same MadCon, I do think a warrant would be needed for this sort of search to begin with regardless, according to the 4th Amendment. As you said though, this is England and that doesn’t apply here. I think there are a lot of rights here that we take for granted.
Heralder on October 7, 2010 at 1:10 PM
Oh look at that, more destruction of freedom under the guise of “going after kiddy pr0n”. Which in the era of illogical thinking can be interpreted as anything down to – I sh!t you not – anthromophic cartoons. Much longer and stick figures will be considered suspect if they look too young.
The sad truth is that it pays to have two hard drives if you’re traveling internationally (your usual one and a squeaky-clean decoy)…or just email yourself a disk image.
Dark-Star on October 7, 2010 at 1:35 PM
How is this different than having a search warrant?
Serious question.
TexasDan on October 7, 2010 at 2:13 PM
Not sure what you mean asking if “warrants apply to private computers.” The answer there is , well, yeah. That’s the purpose of a search warrant: to allow the government entrance to search for evidence of a crime, be it inside a building, inside a suitcase, or inside the hard drive of a computer. So, yeah, the police can obtain a search warrant upon presentation of probable cause to a judge or magistrate to perform a forensic examination of a computer or any other device capable of storing information in a digital format.
Now, does the warrant compel the owner to give up his passwords? In my experience, no. The solution is that most forensic software used by forensic examiners blows right by the passwords anyway. If the suspect wants to give it to us in order to show that he is cooperating with the investigation, that’s cool and will be documented faithfully in my reports. It may help him out at sentencing. If he doesn’t, that’s cool too, because 90% of the people out there aren’t sophisticated enough to have anything set up to that’s strong enough to hamper ouor forensic examination. We pop the hard drive, plug it into our devices, and are looking at your desktop in less than half an hour.
As high level encyption keys become more and more common, the forensic software used by law enforcement may have more trouble getting through. In the long run that’s okay as well because most of the commercial stuff has backdoors built into it. If we needed to, we would subpoena Microsoft or whoever, and they’d let us in that way.
Theoretically, could somebody be smart enough to have written his own encryption plan that no one in the world but he could access? Sure, but those birds are extremely rare. As far as compelling him to give up his passwords I don’t know how we’d do it. We could try hauling in front of a judge who would order him to release the password or be held in contempt but I don’t know how that would fly in the long run. I suspect that it wouldn’t hold up in Federal court. The guy could possibly be charged with hindering prosecution or impeding an investigation, depending on how a state defined it, but those types of charges are usually misdemeanors. If I had a 750 gig hard drive full of child pornography and was looking at a mandatory minimum of 10 years in the Federal pen if the cops got into it, I’d eat a misdemeanor charge of hindering prosecution and do my 360 days in the county jail without complaining at all.
As for running a magnet over the hard drive or attempting to destroy the information in some other way as the cops came in the door, that’s Tampering with Physical Evidence, which is a Felony in and of itself in KY. It’s the same principle as if you had a box full of hard copies of child pornography that you tried to set on fire during the execution of the search warrant. It’s a 1-5 year deal, but I guess that’s better than a minimum 10 year ride if the evidence gets recovered.
Dukeboy01 on October 7, 2010 at 2:21 PM
The article is pretty brief, but it seems that they don’t need a warrant to search because of the Regulation of Investigatory Powers Act 2000.
According to a quick search on this act:
In so many words, they can invoke this act for basically any reason they wish. It’s an instant defacto search warrant unless I’m making a mistake in understanding.
Heralder on October 7, 2010 at 2:25 PM
The guy is accused of scum-baggery of the highest order — sexual exploitation of children is as vile as it gets.
However, since when in Anglo-American jurisprudence did it become the job of the accused to offer up evidence in his own prosecution?
We the police believe you stole a car. We can’t find the car, and unless you tell us where you put the car we all know you stole, we will prosecute you on the charge of FAILURE to provide us with the evidence to prosecute you for stealing the car.
Pretty outrageous huh?
Well, it’s exactly the same basic state thought process by a semi-totalitarian state.
As someone who believes child rapists should receive the harshest possible sentence, I also have to believe that the police will obtain evidence legally, and that an accused CAN never be persecuted for not assisting.
Jack Bauer on October 7, 2010 at 8:51 PM
Sounds like a case for the Paedo-Finder General.
aengus on October 7, 2010 at 9:46 PM
I recommend truecrypt to all who want to avoid such misunderstandings with the government.
thuja on October 7, 2010 at 10:25 PM
Yes. Truecrypt is very good if you don’t want to nuke and reimage your data every time you cross the border. Also good for…unanticipated encounters. They can’t hack what they can’t see. \;-)
Dark-Star on October 7, 2010 at 11:24 PM
Scary.
roy_batty on October 8, 2010 at 8:30 AM
It seems to me that the closest analogy would be if the police want to search your shed, but you refuse to give them the key.
Now of course under American law the big question is: Do the police have a warrant to search your shed? If they do then I believe you are obligated to produce the key and let them search your shed.
Usually it isn’t that big a deal because if you don’t produce the key they just break down the door. However, what if your shed is actually a triple armored bank vault, and it will require enormous resources to break in?
Under those circumstances then yeah- I think the police would be correct in charging you for hindering the investigation by not producing the key.
So if the UK police did anything wrong here, it’s about UK law not requiring probable cause to get a warrant. Which would be an issue regardless.
The demand that he hand over his password (assuming you accept the warrant as valid) is reasonable.
Sackett on October 8, 2010 at 9:42 AM
Technically, the demand itself is valid, but the real issue is the ‘warrant’ and the manner in which it was issued. Jack Bauer’s dead-on analogy pretty much says it all.
Dark-Star on October 8, 2010 at 9:58 AM
Clearly, “lawyer up” doesn’t mean the same thing in the UK that it does here.
J.E. Dyer on October 8, 2010 at 11:45 AM