Posted on 01/24/2012 12:27:06 PM PST by Red Badger
The self-incriminating clause of the Fifth Amendment is always a great help for defendants who want to keep their encrypted hard drives from being decrypted when prosecution asks for it, until now. A Colorado federal judge has ruled that decrypting a computer hard drive does not violate the defendant’s rights.
The ruling came in a case against Ramona Fricosu, who is charged with mortgage fraud. She had argued that decrypting the data on her hard drive would require her to testify against herself, which is prohibited by the US Bill of Rights.
But Judge Robert Blackburn decided differently. According to him, “the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer”.
He cited the case of one Sebastien Boucher, who was asked to decrypt an incriminating hard drive, to support his ruling. In Boucher’s case, the court took the decision that, while the defendant’s encryption password was protected, the data on the drive could be considered evidence in the case.
Fricosu has been ordered to decrypt her drive no later than February 21 or face contempt of court. But her lawyers are fighting the decision and have asked for a stay.
But the question now is not whether Fricosu will be found guilty, but how courtrooms should consider access to data. Debates are on at the moment and the case is definitely going to be an important one considering the application of the Fifth Amendment rights in the digital age.
Dupe Thread!
This is why my lawyer doesn’t have a single computer anywhere in his office. NOT ONE...
Now what would a lawyer have to hide?
They are supposed to be the epitome of the law...................
I would think that ordering someone to give up the encryption key would be testifying against themselves.
If the police can figure it out on their own, fine.
They are not asking for the encryption key, they are demanding that she USE it to decrypt the data.................
Where was it posted earlier?.............
Is a person required to provide a key to unlock a door?
Seems to be the same to me.
Robert Edward Blackburn (born 1950) is a United States federal judge.
Blackburn was born in Lakewood, Colorado. He received a B.A. from Western State College of Colorado in 1972. He received a J.D. from the University of Colorado Law School in 1974. He was in private practice in Las Animas, Colorado from 1975 to 1980. He was a deputy district attorney of Sixteenth Judicial District Attorney’s Office, Colorado from 1980 to 1986. He was a county attorney of Bent County, Colorado from 1980 to 1988. He was a Municipal judge, Town of Kim, Colorado from 1985 to 1988. He was a judge on the Sixteenth Judicial District of Colorado from 1988 to 2002.
Blackburn was a federal judge on the United States District Court for the District of Colorado. Blackburn was nominated by President George W. Bush on September 10, 2001, to a seat vacated by Zita L. Weinshienk. He was confirmed by the United States Senate on February 26, 2002, and received his commission on March 6, 2002.
In either case, I would call that testifying against yourself.
I see the argument in more simple terms.
If the police have a warrant, do you “have a right” to refuse them entry, on the grounds that (knowing what you know you have) opening the door “would incriminate you”.
Substitute “opening the door” to “openining the hard drive” and I think you see the court’s reasoning.
When the police demand entry, you are not obligated to open the door. That you are expected to open the door is a matter of preserving the integrity of the door and establishing your cooperation. If you don’t open the door, they have every legal right to smash it open; your refusal will not stop the lawful acquisition of evidence.
Likewise a safe: if you don’t hand over or recite the key on request, out come the blowtorches and diamond saws - they have the legal right to tear the safe open if need be, you can make it easy and establish some semblance of cooperation, or make it hard and have the safe & contents trashed and establish your legal status as a PITA. The only difference between your cooperation and lack thereof is cost to taxpayers.
Similarly, but not exactly likewise, an encrypted file/volume/drive: providing the key upon request saves everyone the hassle of having to “brute-force” the contents. The analogy deviates here when a proper “key” of long bit length and high entropy is involved, rendering the “brute-force” approach useless.
I draw the line using a “rag doll” model. They can compel fingerprints, physical keys, DNA, etc. insofar as they can manipulate your limp unresitive (albeit uncooperative) body to take fingerprints, extract keys from pockets, snip a hair, extract a blood sample, etc. They cannot, however, compel you to act on their behalf and against your own interests - to wit, they cannot demand you speak (type, write, press buttons) words the whole point of which can and will be used against you. If they can find the password, fine; if it exists only in your head, no. Perhaps they can compel you to provide a safe’s numeric combination, but only because they CAN tear the safe apart otherwise; if the state’s evidence hinges entirely on the defendant’s cooperation, the state is SOL.
It sounds like another case of a Federal Judge ruling against case law. As I remember then this issue has already been decided in the past as being exactly the opposite of what this judge is trying to do.
So use the Bill Clinton defense.
“I can’t Recall”.
There are worse situations. Imagine that you have a large file (or files) on your computer. They are named something like $hhfllsh and live in Microsoft Update folders. Each file is 1 GB long. They look all random inside.
The investigator suspects that these are encrypted volumes (PGP symmetric, or TrueCrypt, whatever.) However there is no way to prove it. You disclaim all knowledge of these files.
What is the judge to do? He can order you to submit keys to decrypt those files; but it may well be an impossible task. Those files could be written by Microsoft, or by any other software. They could be just an error of the filesystem - a directory entry that doesn't point to any valid sequence of disk sectors. Perhaps you unplugged your PC without shutting it down first...
This is what they do in UK, as I understand. Their courts can jail people for refusal to provide a key to an encrypted material - regardless of whether they have that key or not.
I believe this is being made to testify against yourself. I am not against some Leo hacker attempting to decrypt the hard drive if they have a valid warrant and specify what they are looking for.
What is “SOL”?
No where in your post do you mention the niggling detail of a VALID warrant.
Ambiguous or pre-signed warrants to be filled in by the cops do not pass either, the constitution requires specific information.
This appears to be a fishing expedition in violation of the 5th.
With the spam and other unsolicited email we get, a careful search of almost anyone’s hard drive may turn up something “illegal”.
Then there are the “Gotcha” key words deemed to indicate terrorism, if this is allowed to stand EVERYONE is a criminal as soon as their PC is looked into!
This crap flies in the face of our BOR, not that we should be surprised.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.