Thursday, January 26th 2012
Possible Precedent: Accused Americans Can Be Forced To Decrypt Their Encrypted Data
The Fifth Amendment rules that nobody may be "compelled in any criminal case to be a witness against himself." Or, in other words, one has a right to avoid self-incrimination. Therefore, it's highly significant that Judge Robert Blackburn ordered a Peyton, Colorado woman accused of a being involved in a mortgage scam, to decrypt the hard disc drive of her Toshiba laptop no later than February 21. If not, she would face the consequences, including contempt of court. In a 10-page opinion, the judge wrote, "I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer."
The accused, Ramona Fricosu, is declining to decrypt the laptop, which has been secured withSymantec's PGP Desktop software, which is strong enough to thwart the FBI. She will appeal the ruling, perhaps because it appears that she may be unable to decrypt it for any number of possible reasons, according to her lawyer, which could technically get her off the hook, as people cannot be punished for not doing what they are physically incapable of doing. It's not yet clear what those 'reasons' are.
Requiring a defendant to give up their password is a thorny, unsettled legal issue, with judges in some cases agreeing that they shouldn't have to give up their passwords due to the Fifth Amendment and in other similar cases that they do, with law review articles arguing for either side over the last 15 years. This case might settle this question once and for all. It's important to note that the prosecutors in this case are not asking for the actual password, but simply expect the defendant to type it into the laptop in order to decrypt its contents, which might be the key to getting their way.
So, let's look at this from the defendant's point of view, assuming that the order to decrypt stands and they have actually done what they're accused of. They would be in a lose-lose situation, since they would get punished whether they reveal the decrypted contents or not. What they now have to decide is which option causes them to lose less. In the UK, you can be jailed for two years for not decrypting data when demanded, which might actually be a good compromise for a crime that carries a hefty sentence of say, 10 years or so. Plus, they get the dubious satisfaction of having thwarted the authorities, which might be priceless to them.
There's more detail and analysis on this story over at c|net.
Requiring a defendant to give up their password is a thorny, unsettled legal issue, with judges in some cases agreeing that they shouldn't have to give up their passwords due to the Fifth Amendment and in other similar cases that they do, with law review articles arguing for either side over the last 15 years. This case might settle this question once and for all. It's important to note that the prosecutors in this case are not asking for the actual password, but simply expect the defendant to type it into the laptop in order to decrypt its contents, which might be the key to getting their way.
So, let's look at this from the defendant's point of view, assuming that the order to decrypt stands and they have actually done what they're accused of. They would be in a lose-lose situation, since they would get punished whether they reveal the decrypted contents or not. What they now have to decide is which option causes them to lose less. In the UK, you can be jailed for two years for not decrypting data when demanded, which might actually be a good compromise for a crime that carries a hefty sentence of say, 10 years or so. Plus, they get the dubious satisfaction of having thwarted the authorities, which might be priceless to them.
There's more detail and analysis on this story over at c|net.
96 Comments on Possible Precedent: Accused Americans Can Be Forced To Decrypt Their Encrypted Data
They have evidence of what is on the encrypted disk and it is evidence pertinent to the case.
If the court order came through to unlock to laptop as they wanted to find out what was on the disk i would feel differently.
I don;t really see how this is different from a court issuing a search warrant for a property if there is evidence of criminal activity. No matter how many different rl analogies are thrown around.
Anyhow, they would have a hard time proving that she hasn't forgotten the password.
When the banks do it, we just give them more money if the scam fails.
lol I seriously doubt this will become a precident. "alright lemme just decode that for you" *insert string to wipe all incriminating data while keeping everything else intact*
"there you go, now search to your hearts delight"
If the govt/law inforcement can't decrypt it, they won't be able to recover it. That's with or without a Judges order.
It's already set, unless a higher court says otherwise.
Simply put: If the FBI can't crack it and the owner doesn't want to give the password up, the court shouldn't be able to rule that the defendent must give the password up. It should mean that any evidence contained within is not admissible to the case. They'll have to build their case without it. Why? Because if the defendent touched the computer after it has been confiscated, the defense could argue that the court ordered her to tamper with evidence. This whole situation then turns into a giant oxymoron. Judge needs to back off or this is going to a higher court where it will readily be shot down on numerous accounts (especially that last point I made).
My lack of technical knowledge prevents me from determining the company's ability to decrypt documents that were decrypted with their software. It appears that this is not possible: I presume that the court would already have issued an order to this effect.
That would mean all of our jobs are coming back.
At least thats how it is supposed to be. Much like everything else this is being eroded as well.
In this instance though the judge is 100% in the right to demand decryption of the drive as it more than likely contain's specific information about or used to commit a crime.
The thread title is misleading, great for inducing conversation, but misleading none the less. A case like this will not lead to a mandatory "requirement" for decryption or lack of encrypting of people's drive's but may set a precedent for future case's involving e-crime (electronic crime)
"Except you are innocent until proven guilty." That's why they throw you in jail then send you to court lol
See that title? Now check out the very first paragraph:
This case could lead to future instance's where there will be no need to argue the fact's (in a court of law) and you will just have to "pony up" your info.
Let's not argure semantic's :toast:
The authorities believe there is incriminating evidence on the hard drive, but are unable to obtain it, and may only obtain the alleged and unproven incriminating evidence through the forced and involuntary assistance of the owner of the hard drive?
How is forcing someone to reveal (by removing encryption) potentially (again, unknown and unproven) evidence that would be used to prosecute and convict that person of a crime not a violation of the Fifth Amendment to the Constitution of the United States of America?
You see, this is how the Progressive movement works.
They take away one slice of our liberty at a time, slowly paring away at the whole of our guaranteed rights and freedoms, until there is nothing left. Always in the 'best interest' of society as a whole, of course.
Remember the anecdote where if you drop a frog into a pot of boiling water it will jump out, but if you put the frog into a pot of room-temperature water and slowly turn up the heat, the frog will not even notice he is being boiled alive?
I believe that is a fair analogy of what the Progressives have been doing to the Constitution for the last one hundred years or so in America.
In my opinion, the woman should have refused to acknowledge ownership of the computer. In fact, she should have 'remained silent' completely.
1) 5th amendment.
2) What if she had written in cypher on a pen a paper instead and the FBI was unable to read it and demanded she give over her cypher key?
3) Most important **Innocent until proven guilty** which is where the 5th amendment comes from. She may be innocent, and have nude pics of herself on there. She may be innocent and have invented the next best thing to sliced bread. It is up to the court to decide guilt, the prosecute to provide the evidence she is guilty, and she is free to do what she can to prove her innocence.
In the world they are suggesting, she is already guilty, and they are forcing her to prove her innocence, and it is up to the court to force her to confess to her crime.
Spanish inquisition, you are either a heretic, or a liar, either way you die, just hurry up and choose one.
Now about this ruling, I doubt it will be held after an appeal as it is highly irregular and unconstitutional. The police and authorities have every right to investigate, seize and search for evidence. However they have absolutely no right in making you in way to provide that evidence - it would be torture plain and simple.
Holding an accused in contempt because of refusal to offer access to encrypted data is reasons and basis for firing that judge. The obligation of the accused is to only submit the laptop in question to the police, FBI or whatever else agency deems it interesting to have a crack at it.
Furthermore the innocent till proven guilty principle is still in effect, forcing the accused to offer access to her laptop constitutes a premise to raise the objection that she has already been found guilty.
She should just say i forgot. Period. They cant prove she didn't.
other than that I totally agree with you :)
Tell the woman that the 5th amendment does stand and she is not required to reveal (or enter) the password. (That would be unconstitutional)
However, the data is key to the case against her, so she is to remain incarcerated (in jail) while the laptop is sent to the DOJ computer forensics department and they uncrypt it. Unfortunately the DOJ has a huge backlog of work, so it could be awhile. ;)
After all, they do have just cause to hold her and deny bail if they determine her a flight risk.