Judge Rules Americans Can Be Forced to Decrypt Their Laptop

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Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

I think this was discussed elsewhere:
Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Judge Robert Blackburn (left) of the U.S. District Court of Colorado ruled on Monday that a defendant must decrypt her laptop computer so that prosecutors can open the files containing data they need to complete building their case against her.

On May 14, 2010, the federal government executed search warrants at the home of Ramona Fricosu in Peyton, Colorado, looking for evidence in a case involving bank fraud, wire fraud, and money laundering as part of a real estate scam in which she and a partner were allegedly involved. During the search they removed a laptop computer which was encrypted with PGP (Pretty Good Privacy) software. When attempts by the government to open the files failed, they asked her to open the files for them. Following advice from her attorney, Phil DuBois, she turned them down, claiming protection under the Fifth Amendment of the Constitution.

DuBois says that the final deposition of the case will have a major impact on individual privacy in the digital age: The defendant can’t be obligated to help the government interpret those files which could be used against her in court.

Prosecutors, on the other hand, say that inability to obtain data from encrypted files would “harm the public interest” by allowing potential criminals to hide evidence that would defeat their efforts to prosecute them.

In the Fricosu case, the prosecutors claim that all they want is the data in her computer, not the password. They offered to have her open the files without anyone looking at what password she used. DuBois held that that was beside the point — that her password was in her mind and under the Constitution such information was protected by the Fifth Amendment language: “No person shall be … compelled in any criminal case to be a witness against himself…” If it was a simple matter of a physical key to a safe, for example, then the search warrant issued would apply.

The Electronic Frontier Foundation (EFF), a non-profit public interest law firm which defends “user rights to privacy, free speech, and innovation as applied to the internet and other new technologies,” filed an amicus curiae (friend of the court) brief before Judge Blackburn last July. In its brief, EFF said:

The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity…

The Fifth Amendment…privilege protects the “expression of the contents of an individual’s mind…”

To illustrate this principle, the Supreme Court has explained that a witness might be “forced to surrender a key to a strongbox containing incriminating documents” but may not “compelled to reveal the combination to a wall safe…”

Forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender[ing] a key; the witness is being compelled to disclose information that exists in her mind, not to hand over a physical item…

The government…claims that the laptop “has a very high likelihood of containing evidence pertaining to the charged crimes”…but a “very high likelihood” is nothing more than an educated guess. The government can identify neither specific evidence it expects to find on this particular laptop, nor where this supposed evidence might be found on the computer…

The government is overreaching to try to compel Fricosu to supply an encryption password that they hope will give them access to the full contents of a laptop. The court should decide this important constitutional question in a way that recognizes the substantial benefits of encryption to safeguard the security and privacy of digital information stored on computers.

In summarizing its brief, EFF senior staff attorney Marcia Hofmann said, “Decrypting the data on the laptop can be, in and of itself, a testimonial act — revealing control over a computer and the files on it. Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court.”

Judge Blackburn was not impressed with EFF’s arguments and ruled instead that the Fifth Amendment posed no barrier to his decryption order. DuBois responded immediately: "I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals. I think it’s a matter of national importance…"

In an interview with Declan McCullagh of CNET News, DuBois explained what’s really going on with this case:

The government is trying to expand its power. Back in the PGP days, the government was trying to prevent, futilely, the spread of encryption software around the world. Now they’re trying to increase their power by narrowing the Fifth Amendment. Like the others, the Fifth Amendment is aimed directly at the government, primarily the executive [branch]. The executive wants, as it always has and always will, to narrow the Fifth Amendment and thereby increase its own power.

For the moment the Fricosu case is in limbo, awaiting adjudication at the next level. If Blackburn’s decision is confirmed, this case could eventually wind up on the calendar of the Supreme Court.
If this holds up, you'll have no way to keep anything private. Basically, it's possible you'd end up being held in prison until you gave up the password for obstruction of justice. Worse, if you actually forgot the password, you'd be screwed.

There are ways to create encrypted containers within encrypted containers (double password, plausible deniability, etc...give password to outer container, while a second container remains completely hidden ) but should we be forced to use deception or is it our right to encrypt data on our electronic devices.

Years ago, the US government tried to deny the public the ability to encrypt data with anything that couldn't be easily cracked. It's an interesting topic.

We'll see how the 5th amendment holds up.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by kyoukan »

Data encryption is to keep people from accessing your data for malicious purposes, not to hide illegal shit from the law. This ruling isn't any more frightening than a judge forcing you to give up the key to the basement prison you hold all your kidnapped underage girls in. And in this case I really mean you.

You're really not smart or informed enough to pretend to be some sort of crusader of data rights.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

kyoukan wrote:Data encryption is to keep people from accessing your data for malicious purposes, not to hide illegal shit from the law. This ruling isn't any more frightening than a judge forcing you to give up the key to the basement prison you hold all your kidnapped underage girls in. And in this case I really mean you.

You're really not smart or informed enough to pretend to be some sort of crusader of data rights.
Hi fuck face,

It's not the same as giving up a physical key you dumb shit. A password, not written down, kept mentally in your head is different than a physical key or piece of paper. I know you're a simpleton and may think that but for anyone with additional brain power beyond supporting basic bodily functions, it's an issue that warrants debate.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Sylvus »

Doesn't your basement prison have a key code where you have to type in a number to get in? How is it different in that case? Giving up that code # that is in your head vs. your password to the encryption.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aslanna »

Probably should have just added to this thread since it's the same case.. Merge, please!

I am in agreement that you should not be required to incriminate yourself.. That's the whole point of the 5th amendment. Technology being in the picture should not change a thing.

Regardless I hope this makes it to the Supreme Court so it can be determined once and for all. Then again with the SC being run by big business we're probably all screwed anyway.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

To illustrate this principle, the Supreme Court has explained that a witness might be “forced to surrender a key to a strongbox containing incriminating documents” but may not “compelled to reveal the combination to a wall safe…”
Would seem it's already been decided.

Wasn't noted in the other thread, anyone has the ability to encrypt their data in an essentially unbreakable format. Winnow's plausible deniability train of thought is one strategy, there are others as well that exist as a sort of dead man switch on the key material, methods that will require someone to break a law to comply, that take the data and\or key material outside US jurisdiction or out of reach period.

Any encryption method can only be seen as a delaying tactic, Moore's law being what it is. Once quantum computing becomes practical any current encryption method's secure data lifetime becomes negligible.
Last edited by Aabidano on January 27, 2012, 5:06 pm, edited 1 time in total.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

Sylvus wrote:Doesn't your basement prison have a key code where you have to type in a number to get in? How is it different in that case? Giving up that code # that is in your head vs. your password to the encryption.
I don't have a basement. How does is your basement prison security work?

An easy example of being screwed over would be if you were messing around with truecrypt and created an encrypted container and left the file on your HD, forgetting about it and the password. That empty file on your HD could potentially land you in the slammer for life since you don't know the password. Shit happens. You could be crossing a border, etc. or some ass clown could place the file there.

Kyoukan could have video of herself anal raping an monkey with a strap-on. It may not be illegal where she's from but also may not be something you want publicly disclosed. Or, a more mundane example, video of herself anal raping sylvus which also may not be illegal but cold potentially ruin your life or a relationship witha spouse (or at least make people vomit).
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Sueven »

I won't claim to be an expert in this area of the law, but it's an interesting issue conceptually.

On the face of things, I'd think that the government has the right of it. You can't say "I kept that stolen money in a locked box, so you can't prove shit, pigs!" Doesn't work that way. This is more or less the same.

But, if the Supreme Court really did rule that you can be made to turn over a key (because that's not being a witness against yourself per the Fifth Amendment) but that you can't be made to reveal a combination (because that is being a witness against yourself), then things get more complicated. That strikes me as a weird result, though. Can you be made to open the combination-protected safe for the police, even if you don't tell them the combo? I'm curious.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by kyoukan »

Winnow wrote:
Sylvus wrote:Doesn't your basement prison have a key code where you have to type in a number to get in? How is it different in that case? Giving up that code # that is in your head vs. your password to the encryption.
I don't have a basement. How does is your basement prison security work?

An easy example of being screwed over would be if you were messing around with truecrypt and created an encrypted container and left the file on your HD, forgetting about it and the password. That empty file on your HD could potentially land you in the slammer for life since you don't know the password. Shit happens. You could be crossing a border, etc. or some ass clown could place the file there.

Kyoukan could have video of herself anal raping an monkey with a strap-on. It may not be illegal where she's from but also may not be something you want publicly disclosed. Or, a more mundane example, video of herself anal raping sylvus which also may not be illegal but cold potentially ruin your life or a relationship witha spouse (or at least make people vomit).
Go back and read my original response. You missed the part where I mentioned you aren't smart or informed enough to talk about something like this. Go post some more high res screenshots of your creepy underage female avatars in whatever Korean MMORPG you're currently pirating. I promise I won't make fun of you for that, you disgusting fucking pervert.

Do you really think you can circumvent justice in a criminal investigation by pretending you can't remember the password for your encrypted file you store all your child porn in? You actually think that constitution would protect that? You think law enforcement and the judicial system should be legally obligated to give up a criminal investigation after you tell them you don't remember the password? You really think it is so dissimilar to denying law enforcement access to a physical object that there should be special laws to hide your data? I mean, fucking seriously? Do you?
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

It is fun to laugh at you, especially when you lose your grip, but maybe you can ask your husband or whoever it is you mooch off to increase your allowance so you can see a shrink about your neutrino time travel fantasies, why you're such a cunt, and other topics that might be dredged up out of your fishy past.

You seem to fantasize about me often, but try to focus on the issue instead of your obsession with me. You're childish comments are nearing Cartalas levels. Child porn? You're a sick fuck for suggesting that shit. What's next? Child Porn of Hitler? Can your peanut brain not crank out anything more original? You do have the stalking part down though. Grats on that I guess.

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The law requires handing over a key to a safe, it does not require you to hand over the combination to open a safe. Beyond the ignorant fuck kyoukan, can anyone else figure out which of these if more similar to providing a password? A physical safe is not exempt from search warrants. The authorities can use any means they can to attempt to get into it....try to pick it, torch, blow it up...but they can't force you to give up the combination. That accessing encrypted data is more difficult should have no bearing. I haven't seen anywhere in history where safes becoming harder and harder to crack have changed what's been stated above. Whether a safe is made of sheet metal or ten foot thick ultimatium walls, you still can't (legally) force someone to give the combination.

Another search warrant example. You are not required to open the door if presented with a search warrant. The police are legally entitled to break down your door if you don't open it. You don't commit a crime by sitting there while they do.

The United States legal system was created with the presumption that you are innocent until proven guilty. The prosecution is trying to make their case that the defendant is guilty. They are trying to get her to help prove she's guilty by decrypting a hard drive they think will help prosecute her. This goes against the 5th amendment which states nobody may be "compelled in any criminal case to be a witness against himself".

This will end up in the Supreme Court and most likely be overturned. If not, simply forgetting a password could get you 20 years for obstruction of justice, whether there's anything of value in an encrypted file or not. Besides kyoukan's really freaky obsession with child porn, there are many legitimate reasons to encrypt partitions, files, hard drives, etc and forgetting passwords happens daily. Ask any IT department. You should not be able to fuck yourself by not providing a password, despite morons like kyoukan presuming guilt or her mind being so close to a vegetable state that other possibilities aren't able to be considered.

Encrypted data is indistinguishable from random data. Say you have two hard drives. One might be encrypted while the other has random data. Both drives contain legal content. For reason X, you're suspected of having incriminating encrypted data. What happens when you're asked for two passwords but only have one? Off to jail you go for obstruction of justice. Invoking your 5th amendment rights should never be considered obstruction of justice.

Perhaps the final decision in this will be that they have the right to ask for the password but the defendant has the right to say they forgot or don't know it without being hit with obstruction of justice unless it can be proven that the defendant has not forgotten the password.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by kyoukan »

yeah, I'm the one losing my grip. So go ahead and say it. Say "I should be able to get away with any crime merely by saying I do not remember. Saying I do not remember immediately should absolve me of all guilt and law enforcement should respect memory loss as a means to close their investigation." That is clearly how the justice system works in any country. I am not sure what stupid people raised you, but usually totally lacking in anything resembling personal responsibility is not only a shitty legal defense, but it makes you into a shitty person.

Oh jesus I'm wasting my fucking time.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Kilmoll the Sexy »

Sueven wrote:I won't claim to be an expert in this area of the law, but it's an interesting issue conceptually.

On the face of things, I'd think that the government has the right of it. You can't say "I kept that stolen money in a locked box, so you can't prove shit, pigs!" Doesn't work that way. This is more or less the same.

But, if the Supreme Court really did rule that you can be made to turn over a key (because that's not being a witness against yourself per the Fifth Amendment) but that you can't be made to reveal a combination (because that is being a witness against yourself), then things get more complicated. That strikes me as a weird result, though. Can you be made to open the combination-protected safe for the police, even if you don't tell them the combo? I'm curious.
I would liken it to being jailed for suspicion of murder because you refuse to give the location of the body so they can gather evidence. I don't think they could force you to produce a key for something if you did not have it in your possession or could be located while lawfully searching with a warrant. That is a pretty fine line to walk if they can jail you for something in your mind.

The kicker with encryption is that you can virtually guarantee that anyone who encrypts a drive is going to have the recovery key stored on a thumb drive or printed out somewhere or they would run a very real risk of losing their data.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Zaelath »

Could be worse, this guy spent the last 14 years in jail for not disclosing information the government has no proof exists, other than the say so of his wife during their divorce proceedings:

http://www.post-gazette.com/pg/09192/983301-454.stm

Forgetting your encryption password is a risk though, I do it all the time...
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Siji »

Zaelath wrote:Could be worse, this guy spent the last 14 years in jail for not disclosing information the government has no proof exists, other than the say so of his wife during their divorce proceedings:
"Land of the Free" is quickly becoming a lie. Think of all the various ways you can be held these days (and how people ARE currently being held such as above) for in all honesty not having done anything wrong. The whole argument of "I have nothing to hide because I don't do anything wrong" shit doesn't apply any longer. Living a free life these days is navigating a lucky life.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

Kilmoll the Sexy wrote:The kicker with encryption is that you can virtually guarantee that anyone who encrypts a drive is going to have the recovery key stored on a thumb drive or printed out somewhere or they would run a very real risk of losing their data.
Depends on the stakes involved, if I had something that could put me in jail long term or cause other irreparable harm, I'd take the risk of losing it permanently rather than go into our penal system.

Said as someone who has the foresight not to put myself in that situation in the first place. I don't think like a criminal, from all I've read on average they think the odds of getting caught are much smaller than they are, assuming they entertain that possibility at all.

After seeing some test results, a microSD ought to be able to pass through your digestive system and still be usable.

On keying material, it'd be a stretch for them to be able to conclusively say you have or don't have access to or knowledge of the keys.

Is it still contempt if you allow the keys to be destroyed through inaction?
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Canelek »

This is why I store all of my money laundering activity on easily-destroyable sticky notes.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by masteen »

I'm not sure your weed to American Apparel t-shirts to maple sizzurp triangle is a major federal concern.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

Dredge up this thread rather than create another.

I don't have a link handy, was on slashdot earlier this week. Federal courts decided defendants can be compelled to give up encryption keying material where he was shown to have encrypted other incriminating evidence on the same system (in this instance).

The FBI was able to brute force one file on a system which contained pedophile porn, that gave reasonable grounds to compel the suspect to fork over the other keys. Similar to what was discussed earlier, just tightens the noose a bit.

The Guardian has a good guide on "how to hide data", based to some extent on US govt recommendations; it's not a trivial activity depending on who your adversary might be.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

Aabidano wrote:Dredge up this thread rather than create another.

I don't have a link handy, was on slashdot earlier this week. Federal courts decided defendants can be compelled to give up encryption keying material where he was shown to have encrypted other incriminating evidence on the same system (in this instance).

The FBI was able to brute force one file on a system which contained pedophile porn, that gave reasonable grounds to compel the suspect to fork over the other keys. Similar to what was discussed earlier, just tightens the noose a bit.

The Guardian has a good guide on "how to hide data", based to some extent on US govt recommendations; it's not a trivial activity depending on who your adversary might be.
Scary stuff. Haven't read the article but you can use the container within a container encryption method where you encrypt a folder and then encrypt a hidden folder within that folder. It's impossible to tell there are two encrypted folders using the method and when asked to hand over your password, they just see whatever you chose to have in the top layer.

The problem I see is that with the government being so paranoid, you may not actually remember a password and have nothing to hide yet still go to jail. That's fucked up. Especially when you can be hacked and someone could place encrypted files on your hard drive. Any innocent dumbass with an easy hackable password could be setup. That's why you should never be forced to give a password, the same as the combination to a safe. If you were dumb enough to write it down, then they can find it, otherwise, there's no law or scientific proof that guarantees you will remember a password. People forget dozens of them all the time. For the paranoid people, any $1 USB thumb drive conveniently placed and with encrypted data can now get you jail time. Maybe they'll be standard issue to cops so they can drop them when needed.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

Using a dead-man type function to destroy the keying material and being able to demonstrate that might help, though they could always contend you have another copy of the keys.

There's a lot more to it but The Guardian spoke of doing everything within secure Linux VM, stored in an encrypted volume which only contacts the outside world via Tor.

Also mentioned is the ability of a spiteful person to draw attention to someone by mailing them the public key of an asymmetric key pair from a throw away email account.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

Aabidano wrote:Using a dead-man type function to destroy the keying material and being able to demonstrate that might help, though they could always contend you have another copy of the keys.

There's a lot more to it but The Guardian spoke of doing everything within secure Linux VM, stored in an encrypted volume which only contacts the outside world via Tor.

Also mentioned is the ability of a spiteful person to draw attention to someone by mailing them the public key of an asymmetric key pair from a throw away email account.
That's the huge issue everyone should have with this. It's way way too easy for an innocent person to get royally fucked over. The people that say "if you're not doing anything illegal, you have nothing to worry about", are wrong. You have absolutely no way to prove your innocence if the authorities believe you're hiding a password.

I checked out TOR. It's slow as shit. If it ever becomes viable with semi decent speed, I'd do everything through there, even general surfing of the net.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

Winnow wrote:I checked out TOR. It's slow as shit. If it ever becomes viable with semi decent speed, I'd do everything through there, even general surfing of the net.
Tor varies widely, totally dependent on the exit node and your path across the tor network to it. Load\unload vidalia and everything changes every time.

Decent enough for surfing most of the time but your 100Mb link to the hello kitty news server will suffer massively.

Much of the commonly used internet breaks when you're coming from a tor exit node and have scripts locked down. I spent a week or so surfing only via Tor a while back, the news and search results presented change a lot when they don't know what you're predisposed to click on.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

Aabidano wrote:I spent a week or so surfing only via Tor a while back, the news and search results presented change a lot when they don't know what you're predisposed to click on.
It's also fun to surf using VPN. With Astrill UI have access to lots of IPs located in countries all over the world. It's interesting to see which countries block various sites, etc. UK is pretty strict from what I've experienced.

Also, Youtube streaming varies wildly depending on your IP/provider. I get crap youtube on my 100 Mbps service plan if I use my own provider (Cox) but if I switch to a different IP using VPN it streams without a hitch.

Early on, I thought VPN would slow my connection but in most countries I get very fast connection (like 50+ Mbps when doing multistream downloads, etc). I stream the NFL network/Games using an IP in the Netherlands with 4 games streaming at the same time and it performs well. That's with Astrill, I'm sure it varies depending on VPN services.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

Winnow wrote:...I stream the NFL network/Games using an IP in the Netherlands with 4 games streaming at the same time and it performs well. That's with Astrill, I'm sure it varies depending on VPN services.
While it can work, in this context using a VPN provider doesn't buy you much, and could make it appear worse if any of the pieces parts are in a US jurisdiction.

In your example assuming the content isn't/wasn't publicly available in your jurisdiction; if the NFL for example decided to attack their customers in an RIAA-like manner your VPN provider, their host, the payment processor, etc.. will roll on you in a heartbeat. Hopefully they'll ask for a warrant or FISA-type letter but I wouldn't count on it.
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Winnow »

Aabidano wrote:
Winnow wrote:...I stream the NFL network/Games using an IP in the Netherlands with 4 games streaming at the same time and it performs well. That's with Astrill, I'm sure it varies depending on VPN services.
While it can work, in this context using a VPN provider doesn't buy you much, and could make it appear worse if any of the pieces parts are in a US jurisdiction.

In your example assuming the content isn't/wasn't publicly available in your jurisdiction; if the NFL for example decided to attack their customers in an RIAA-like manner your VPN provider, their host, the payment processor, etc.. will roll on you in a heartbeat. Hopefully they'll ask for a warrant or FISA-type letter but I wouldn't count on it.
I agree. I wouldn't expect any legal protection from using VPN. Astrill is located out of Australia or at least under Australian law and I'm sure they'd give up IPs if pressured. VPN is still useful for many reasons.
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Aabidano
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Re: Judge Rules Americans Can Be Forced to Decrypt Their Laptop

Post by Aabidano »

Winnow wrote:VPN is still useful for many reasons.
I agree, in my limited use popping in a linux/tor configured read-only bootable SD is good enough.
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