Posted on 01/24/2012 12:06:01 AM PST by LibWhacker
American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.
Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21--or face the consequences including contempt of court.
Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be "compelled in any criminal case to be a witness against himself," which has become known as the right to avoid self-incrimination.
"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," Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.
Ramona Fricosu, who is accused of being involved in a mortgage scam, has declined to decrypt a laptop encrypted with Symantec's PGP Desktop that the FBI found in her bedroom during a raid of a home she shared with her mother and children (and whether she's even able to do so is not yet clear).
Colorado Springs attorney Phil Dubois, who once represented PGP creator Phil Zimmermann, now finds himself fighting the feds over encryption a second time.
"I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals," Fricosu's attorney, Phil Dubois, said this afternoon. "I think it's a matter of national importance. It should not be treated as though it's just another day in Fourth Amendment litigation." (See CNET's interview last year with Dubois, who once represented PGP creator Phil Zimmermann.)
Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said.
Today's ruling from Blackburn sided with the U.S. Department of Justice, which argued, as CNET reported last summer, that Americans' Fifth Amendment right to remain silent doesn't apply to their encryption passphrases. Federal prosecutors, who did not immediately respond to a request for comment this afternoon, claimed in a brief that:
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.
While the U.S. Supreme Court has not confronted the topic, a handful of lower courts have.
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).
A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.
Prosecutors in this case have stressed that they don't actually require the passphrase itself, and today's order appears to permit Fricosu to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding "the password to the drive, either orally or in written form."
Because this involves a Fifth Amendment claim, Colorado prosecutors took the unusual step of seeking approval from headquarters in Washington, D.C.: On May 5, Assistant Attorney General Lanny Breuer sent a letter to Colorado U.S. Attorney John Walsh saying "I hereby approve your request."
The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled "Compelled Production of Plaintext and Keys.")
Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?
Fricosu was born in 1974 and living in Peyton as of 2010. She was charged with bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs that were facing "imminent foreclosure" or whose owners were relocating outside the state. Some of the charges could yield up to 30 years in prison; she pleaded not guilty. Her husband, Scott Whatcott, was also charged.
Iran [Source 5]Lol, poor b******s.2. Domestic laws and regulations According to the 2005 HRW report False Freedom, use of encryption for exchanging information requires a license. Users have to request permission by submitting crypto algorithm and keys and information about 'related parties' to the Supreme Council for Cultural Revolution, as regulated in art. 5.3.8 of the Rules and Regulations for Computer Information Providers.
8 years ago I would agreed with you.
Now... after seeing the Patriot Act abused, the Dept of Homeland Security abused (as I feared, but was told here ‘if you don’t have anything to hide, what does it matter...’)
W, as much I worked to get him elected in 08, wasn’t a conservative in the legal sense. Maybe in social issues, but not in legal ones. Or in fiscal ones for that matter.
That being said, I don’t feel it was from the same attitude as Obama, just ignorance. I like and miss W very much.
Although none of us have anything to hide, there is no need to “at the least”, leave your deleted files available for anyone to bring back to life. As some of you know, deleted files go to your recycle bin to be permanently deleted at a future time unless you delete by using the “shift+delete method that bypasses the recycle bin. None of these files are ever really deleted, but sent to your free space on the drive. Most drives anymore have hundreds of gigabytes of free space at any given time leaving all your deleted files in tact for recovery.
ANSWER - Glary Utilities Free Edition - This program wipes your free space clean and should be run often, as it not only cleans up your past, but your puter will run faster when these Junk Deleted files go bye bye. Directions: Download “Glary Utilities” - Link included below from cnet. Open program and choose File Shredder - then choose “Wipe Free Space” and let ‘er rip. :-)
http://download.cnet.com/Glary-Utilities/3000-2094_4-10508531.html?tag=mncol;1
Duh! Decisions, decisions!
BTW, I think this judge is dead wrong.
Exactly my thoughts. Some entranapeur is going to develop this. The creation of a system minus directories you specified.
This chaps my hide!
Plausible deniability is your friend.
You can use the possibility of surveillance to position “facts” that when discovered protect you.
A word to the wise......
Following up on my last Post -ran out of posting length- Glary has many other great features that that make “clearing your browser look like child play”. One of them is called “One Click Maintenance” which will send every website you have ever visited, along with every other thing that you thought you have sent to the PROMISED LAND actually to the PROMISED LAND never to be seen again by ANYBODY - PERIOD.
Many more great features to play with also. I have used it for years and every update makes it just get Better and Better. And no, I have NO affiliation with Glary!
http://download.cnet.com/Glary-Utilities/3000-2094_4-10508531.html?tag=mncol;1
It sounds like you are very lucky my FRiend, to have such a daughter :-)
Looking at what it says about this case (which is not a whole lot) it sounds virtually superfluous whether or not anybody can find the phonied documents on her computer, if she went and submitted them to government records under her Jane Doe (which normally requires signing for them separately from the document, meaning taking responsibility for the documents’ veracity). Is there some separate crime of “having phony documents on a computer” the prosecution hopes to have her found guilty of? It would at most lend a teeny bit more weight to an already heavy case she faces.
You call upon president Gingrich to newter the beast!
Please dear God, help us to elect Newt.
Follow these laws to the legislature — if the judge just “made the law up” it would get him/her a stern rebuke from the appellate courts. This is a political process.
Newt can’t “Newter” a thing going on at a purely state level. Not without making Leviathian even more overweening.
I can't say I understand the second part, but I agree with the first, or I suppose leave it blank and you could say you set it up but never got around to using it.
My bigger concern would be that the inner volume would only show as empty to a very cursory examination. Even if it couldn't be decrypted, that would be trouble.
An encrypted volume looks “full” whether there’s something in there or not.
The idea seems to be that the inner volume would appear to be a free space area filled with garbage that is as equally random to statistical inspection as free space on the outer volume is. It’s not like there is a bunch of nulls on the drive then all of a sudden this big balloon of “garbage.”
I’ll tell them the truth...I dont know how the darn thing works.
(I do however have 3 boys, without whom I would be using an abacus)
OK - Got it, thanks.
Most drives anymore have hundreds of gigabytes of free space at any given time leaving all your deleted files in tact for recovery.
1) Low-level format
2) write 0s across entire disk
3) write 1s across entire disk
4) Low-level format
5) (if it sensitive data in it) take out back and hit with BFH
6) Aw, heck, I’m lying, we hit ‘em ALL just because it was fun.
If it was a failed disk out of RAID and we couldn’t do 1-4, we went straight to 5. Several times.
Like I said, it was fun.
I use virtual machines. I can delete and overwrite them fairly easily.
You do all your web browsing from the VM, and all the port 80 calls go directly thru the hosts virtual switch, which doesn’t log the ip addresses used (it may log the MAC addresses, but that’s not really helpful to know where you went outside the local network). Of course, you can encrypt your virtual machines .vhd and .vmdk files but it puts a load on your performance.
You’d have to turn off some of your logging and other data on the VM host software, but it could be done. Yup, I like using vm’s to do stuff that is no one else’s business.
Someone tell these judges that if a woman’s right to privacy lets her kill her unborn baby, then I have an equal right to privacy from the prying eyes of government! What a country!!!
Ping for later.
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