Posted on 07/11/2011 10:39:22 AM PDT by Smogger
The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase. The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.
Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.
In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"
...
"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," said EFF Senior staff attorney Marcia Hofmann. "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."
(Excerpt) Read more at news.cnet.com ...
Hey stupids at the DOJ: thanks for letting the world know the limitations of the NSA’s decryption capabilities.
Now, if you'll excuse them, the US Department of Justice has thousands of military weapons to give to the Mexican narco-trafficking cartels.
I don’t recall worked great for Hillary Clinton!
Everyone who knows about encryption know that there are limits to cryptographic attacks, even the NSA’s. And whose to say the government is going to utilize NSA resources on every two- bit criminal with an encrypted hard drive? I would assume they are NOT going to.
Need a whole disk encryption system that allows you to enter two passwords.
One password reveals the real stuff. Another password reveals the fake stuff while it deletes and rewrites random data over the real stuff.
But then that would be tampering with evidence or some other charge. So best to just take the 5th and stay quiet.
This will be an interesting case. What happens if they give you immunity to compel your testimony that the password you provided won’t be used to prove you had access to the machine? They could force your testimony then, no?
I FORGOT..............Steve Martin................
I must have read your mind.
I don't think this says anything one way or the other about NSA's abilities in this arena.
Personally, I wouldn't bet against NSA.
Garde la Foi, mes amis! Nous nous sommes les sauveurs de la République! Maintenant et Toujours!
(Keep the Faith, my friends! We are the saviors of the Republic! Now and Forever!)
LonePalm, le Républicain du verre cassé (The Broken Glass Republican)
I agree. Was Hitlery ever jailed for having a “poor memory?” I’d say it worked fine. She’s still sucking at the public teat.
I’m surprised there haven’t been more of these cases, but then I’m surprised more people don’t take measures to protect their data both in terms of backup and security.
Clearly falls under the Fifth Amendment (assuming we still have one). Legal types will get hung up on what and what doesn’t constitute ‘testimony’ but the Fifth, of course, deals with bearing witness against oneself in or out of court.
I suppose the best defense for anyone in this spot is to simply say ‘I forget the password. I guess we’re both screwed.’
There is already such a thing, and I use it. It’s called a hidden volume, and allows you to enter a password under duress the decrypts only what you want the people strong arming you to see.
I think the last person the Government jailed for having a poor memory was Scooter Libby. But, had he simply not talked, he would never have been convicted.
‘I forgot’ armed robbery was illegal!
Ummmm.
No you can't.
You gonna bring back the rack?
The Iron maiden?
Drawing and quartering?
Water boarding that is prohibited from being used on mortal enemies?
Good luck with that.
But it doesn’t delete the stuff you want to hide, does it?
I guess 3 passwords would be best.
1) Just show fake stuff
2) Show real stuff
3) Show fake stuff and delete real stuff
Yeah...what you said!
“The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.”
Maybe she can say:
“My lawyer and I will gladly submit any questions you have for my laptop computer, and question by question, under my lawyers advice we will make my laptop computer answer any question that will not violate my Fifth Amendment rights. But no, we will not allow you to interrogate my laptop with any lower standard with which you are not allowed to interrogate me.”
Just trying to speak in “legalese” even though I am not totally convinced of that argument myself.
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