Free Markets, Free People
Interesting case. And I lean toward the side which says doing what is ordered amounts to self-incrimination which the 5th Amendment is designed to prevent.
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.
I’m not sure, in her case, what they’re looking for, not that it matters particularly. We again have technology in the focus and its use being ruled on by the court. The question is, does such an order violate the defendants right to refuse self-incrimination by unlocking data which has the possibility of incriminating her.
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.
I certainly understand the import of that claim. And it is a valid point. But is it something which over rides the protection of the 5th Amendment? In my opinion, this is not at all as clear as the 4th Amendment case below. I’m not sure, however, one explains away the fact that decryption may indeed incriminate the person required to do the decrypting.
[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.
On the other hand:
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).
The government argues:
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.
The defense argues:
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?
There you have it.
Today’s economic statistical releases:
The week has started slowly, as there were no releases yesterday, and only minor releases today.
Retail sales, as reported by Redbook, have slowed substantially in January, as last week was…weak, and so is this week, with the year-on-year same-store sales rate falling 0.5% 2.8%. ICSC-Goldman Store Sales also fell steeply, down -1.4% from last week, and up only 2.8% from last year.
The Richmond Fed index rose strongly from last month’s 3 to 12 this month, indicating expanding growth in the richmond district’s manufacturing sector.
I don’t know about you, but this seems such a clear thing to me. If law enforcement is going to put any sort of a tracking device on a citizen’s vehicle, they need to obtain a warrant first. See 4th Amendment:
The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.
Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”
“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.
“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
The government, in this case, had put a GPS device on the target’s vehicle without a warrant, monitored it for 28 days and then used that information at his trial (he was convicted on cocaine trafficking charges and given a life sentence).
The reason I think this should have been a no-brainer for LEOs is the fact that the SCOTUS decision was unanimous.
When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”
Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”
Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.
Ok, get a freaking warrant first.
What this decision does is uphold a Constitutional right that has been under assault for quite some times. The “envelope stretching” that is not uncommon as new technology offers new methods of surveillance and monitoring. The watchword for LEOs should be “when in doubt, get a warrant”. And live by the document you’ve sworn to uphold and defend.