Free Markets, Free People


More Law vs. Constitutional Rights

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. 

For instance:

[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.

Opinions?

~McQ

Twitter: @McQandO

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25 Responses to More Law vs. Constitutional Rights

  • In civil cases, decryption should be something a court may order.

    In criminal cases, and according to the 5th and its jurisprudence, I see no possible justification for ordering decryption.

    Where, however, decryption is ordered…for instance to gain evidence to be used against others…information on the person ordered must be excluded.

  • They need the decryption in order to get evidence to convict her. She is the only one who can decrypt. Why should she?

  • What these encrypted drives need is a deadman’s trigger phrase… yes your honor, allow me to type the phrase in for you, see now it is just as I said, the drive is empty… now. Well Ok if the court is aware of that trick they will image the drive and get some nerd to hack the trigger to know what is happening.

    The comparison to a safe is a little off… given a workshop, some tools and a careful engineer with a few days the contents can be brute-forced out of the safe. But a pgp encrypted drive? Well they could ask the NSA for help but even then the expected waiting time to open that safe is just a leeeeettttllllle bit longer than the prosecutors want to wait.

    But if I was a serious crook I’d have a security system in which it was impossible to tell if the “correct” encrypted file system had been unlocked. One passphrase gets you the kiddyporn, another gets you holiday snaps of the family. Pretty easy to devise and make pretty impossible to prove the existence of dual filesystems, so I assume it can already be bought.

  • Fascinating arguments for both outcomes, but I tend to favor protecting the 5th Amendment rights. Today we consider saved data as something akin to a paper notebook or journal, which can be taken with a proper warrant. I wonder if we will reach a point in our technological merger between the human mind and machine where certain personal devices will one day be considered an extension of the mind and therefore as protected as the mind itself from compelled self incrimination?

    • @CaptinSarcastic Why is a encrypted notebook different from an encrypted computer file?

      The issue is not taking the thing, but compelling the exposure of the information. It is not “something new under the sun” issue.

      • @Ragspierre @CaptinSarcastic “but compelling the exposure of the information”
        I see this, they have the ‘thing’. They have the drive, and the data on the drive….they WERE able to issue a warrant for that. To presume she must translate the data for them is beyond the scope of the taking specified by the warrant from what I can see.

        • @looker @CaptinSarcastic Another apt analogy…

          The LEOs…with warrant…take a dumpster-load of shredded documents.

          The judge orders…under penalty of contempt…that the suspect paste all the shreds into a usable form and provide information as to the meaning of each document.

          Under the 5th, kan’t be done.

          Likewise, you and I enter into a criminal conspiracy (like that is far-fetched, or something….!), and develop a language unique to ourselves.

          Hours of useless wire-tap recordings frustrate the investigating LEOs, so the judge ORDERS us to translate the tapes.

          Nope.

        • @Ragspierre @CaptinSarcastic How long can he hold her on the contempt charge? That could be a far better option if the case is a serious criminal case, which I presume, it is.

        • @looker @CaptinSarcastic The power of a judge to enforce via contempt is pretty awesome. People have served years under contempt, if memory serves.

          BUT…habeas corpus gets her out, and before an appellate court to review.

        • @Ragspierre @CaptinSarcastic I wondered about that, recalling incidents of reporter’s compelled to expose their sources and being held in contempt for longer than I thought reasonable gave me to think that “contempt” is indeed a powerful tool.

        • @Ragspierre @CaptinSarcastic Right, because she’s the accused, as opposed to being a journalist withholding information who won’t be serving jail time otherwise.
          I wondered how the 5th Amendment worked against the chance, as here, the defendant could be held in contempt.

        • @looker @CaptinSarcastic As I said somewhere the other day—you don’t just get to intone “5th Amendment” and get a King’s-X. A judge can…and often does…interrogate you rather closely to find out if, indeed, you are due the protection. Otherwise, even people in civil cases would use it to defeat discovery.

    • @CaptinSarcastic It would be closer to an encrypted journal and demanding she give them the cypher key to allow the deciphering process.

      Literally she’s being forced to provide the key that may help incriminate her.

      This is a tough one, I can understand how the judge could go either way on it. Myself, I’d have to go with her right not to incriminate herself by yielding the key.

      • @CaptinSarcastic A ‘key’ is not the same as a physical key, so their argument that this is like a safe doesn’t wash for me.

    • @CaptinSarcastic A ‘key’ is not the same as a physical key, so their argument that this is like a safe doesn’t wash for me.
      They can get the key to a safe, and discover there’s nothing inside at all. There’s always something in words/data, even if it’s “all work and no play makes jack a dull boy” encrypted for page after page with some rolling cypher.

    • @CaptinSarcastic And finally, she took reasonable steps to maintain her privacy, the data is encrypted for whatever reason, and not able to be read by just anyone. They can issue a warrant for a physical book, I agree, I would rule against them forcing her to give them the information FROM the book if they can’t read it themselves.

      Posit a hypothetical where she is the only person in a the world who can speak and write a dead language, and makes all her notes IN that language, IN a book. By compelling her to translate the book where she itemized her theft of twinkies and hoho’s from the corner grocery story in this dead language, we are forcing her to testify against herself.

      • @looker @CaptinSarcastic KOR-ect. (In an obscure dead language).

        • @Ragspierre @CaptinSarcastic Well dammit! I wish Blackburn would call me and ask before he goes and issues rulings like this! That man, I’m tellin ya….

        • @looker @CaptinSarcastic HoHos…!!! AND Up-Twinkies…!!! Er…

        • @Ragspierre @CaptinSarcastic So, be interesting to see if this goes to appeal if they get a conviction. This isn’t a minor issue.

  • If you are an American criminal make sure that your encryption key is something that incriminates you:
    – “the body is buried under the oak at the 4th bend in the…”
    – “I defrauded the insurance company by…”

    Then plead the 5th.

  • At least a “No Knock” warrant won’t work in this situation.

  • I would say this: law enforcement may indeed have a right to the contents of her hard drive. The defendent, however, has no obligation to help them obtain the contents. If law enforcement wants the contents, let them find a way to get them.

    An analogy. John is thought to have stolen goods in a locked closet. The police come to his home with a properly executed warrant. Finding the closet locked, the police ask John for the key. John says, “I am invoking my 5th Amendment rights. Please provide me with an attorney.” Thereafter, the police ask him no more questions, but proceed to open the closet with a crowbar.

    To me, the rights of John and the authority of the police both remain intact. John offered no incriminating statements, and the police lawfully executed a search. Now, had the closet been reinforced so thoroughly that the police were unable to get entry, that would not be John’s problem. That would be the problem of the police.

    —Tom Nally, New Orleans

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