Thursday, January 26th 2012

Possible Precedent: Accused Americans Can Be Forced To Decrypt Their Encrypted Data

The Fifth Amendment rules that nobody may be "compelled in any criminal case to be a witness against himself." Or, in other words, one has a right to avoid self-incrimination. Therefore, it's highly significant that Judge Robert Blackburn ordered a Peyton, Colorado woman accused of a being involved in a mortgage scam, to decrypt the hard disc drive of her Toshiba laptop no later than February 21. If not, she would face the consequences, including contempt of court. In a 10-page opinion, the judge wrote, "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."
The accused, Ramona Fricosu, is declining to decrypt the laptop, which has been secured withSymantec's PGP Desktop software, which is strong enough to thwart the FBI. She will appeal the ruling, perhaps because it appears that she may be unable to decrypt it for any number of possible reasons, according to her lawyer, which could technically get her off the hook, as people cannot be punished for not doing what they are physically incapable of doing. It's not yet clear what those 'reasons' are.

Requiring a defendant to give up their password is a thorny, unsettled legal issue, with judges in some cases agreeing that they shouldn't have to give up their passwords due to the Fifth Amendment and in other similar cases that they do, with law review articles arguing for either side over the last 15 years. This case might settle this question once and for all. It's important to note that the prosecutors in this case are not asking for the actual password, but simply expect the defendant to type it into the laptop in order to decrypt its contents, which might be the key to getting their way.

So, let's look at this from the defendant's point of view, assuming that the order to decrypt stands and they have actually done what they're accused of. They would be in a lose-lose situation, since they would get punished whether they reveal the decrypted contents or not. What they now have to decide is which option causes them to lose less. In the UK, you can be jailed for two years for not decrypting data when demanded, which might actually be a good compromise for a crime that carries a hefty sentence of say, 10 years or so. Plus, they get the dubious satisfaction of having thwarted the authorities, which might be priceless to them.

There's more detail and analysis on this story over at c|net.
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96 Comments on Possible Precedent: Accused Americans Can Be Forced To Decrypt Their Encrypted Data

#1
silkstone
I have to Disagree with quibit's opinion here.

They have evidence of what is on the encrypted disk and it is evidence pertinent to the case.
If the court order came through to unlock to laptop as they wanted to find out what was on the disk i would feel differently.

I don;t really see how this is different from a court issuing a search warrant for a property if there is evidence of criminal activity. No matter how many different rl analogies are thrown around.

Anyhow, they would have a hard time proving that she hasn't forgotten the password.
Posted on Reply
#2
Horrux
erocker said:
Woman on trial for stealing people's money through a mortgage scam yeah, I'm surprised that her computer wasn't just taken from her for evidence anyways. If she's guilty I hope she is brought to justice.

It's like commiting a crime with a gun, then putting the gun in a lockbox with a security feature. If the gun is in the lockbox, prosecuters are going to want it and what's inside obviously.
Yeah when a woman goes mortgage scam, we gotta stomp on that shit hard.

When the banks do it, we just give them more money if the scam fails.
Posted on Reply
#3
yogurt_21
waste of time

lol I seriously doubt this will become a precident. "alright lemme just decode that for you" *insert string to wipe all incriminating data while keeping everything else intact*
"there you go, now search to your hearts delight"

If the govt/law inforcement can't decrypt it, they won't be able to recover it. That's with or without a Judges order.
Posted on Reply
#4
DannibusX
If it's ruled by the courts as "you have to decrypt the drive, the 5th amendment doesn't apply" it sets precedent.

It's already set, unless a higher court says otherwise.
Posted on Reply
#5
FordGT90Concept
"I go fast!1!11!1!"
qubit said:
It's not yet clear what those 'reasons' are.
"Forgot" the passphrase? XD


Simply put: If the FBI can't crack it and the owner doesn't want to give the password up, the court shouldn't be able to rule that the defendent must give the password up. It should mean that any evidence contained within is not admissible to the case. They'll have to build their case without it. Why? Because if the defendent touched the computer after it has been confiscated, the defense could argue that the court ordered her to tamper with evidence. This whole situation then turns into a giant oxymoron. Judge needs to back off or this is going to a higher court where it will readily be shot down on numerous accounts (especially that last point I made).
Posted on Reply
#6
Mr McC
qubit said:
as people cannot be punished for not doing what they are physically incapable of doing.
Next time a figure of authority asks you to sign anything, just take a monkey wrench to your hand: that'll learn 'em. ;)

My lack of technical knowledge prevents me from determining the company's ability to decrypt documents that were decrypted with their software. It appears that this is not possible: I presume that the court would already have issued an order to this effect.
Posted on Reply
#7
DannibusX
wahdangun said:
no, that was wrong in every way, the prosecuters could obtain a warrant to size the lockbox, but there are no way the prosecuters can request lockbox key from the criminal.


so what the prosecuters could do is decrypt it, maybe they could request someone that have super computer to brute force it or start buying as many radeon/gforce card and build some short of low cost supercomputer with it.

now i know why SOPA could happen in USA, if every one thinking like you then just change your country name to china 2.0 already.
I fully support America become China 2.0

That would mean all of our jobs are coming back.
Posted on Reply
#8
Horrux
Yeah more like Soviet States of Amerika
Posted on Reply
#9
kalstrand
tigger said:
If she refuses, it should just be taken as a admission of guilt, if there was nothing on it proving her guilt, she would just give them the data.
Except you are innocent until proven guilty.

At least thats how it is supposed to be. Much like everything else this is being eroded as well.
Posted on Reply
#10
m1dg3t
We have no right's, wake up. They allow us to do what they want us to do. They tell us what they want us to know. We are like mushroom's: Kept in the dark and fed shit. Welcome to the "New World Order"

In this instance though the judge is 100% in the right to demand decryption of the drive as it more than likely contain's specific information about or used to commit a crime.

The thread title is misleading, great for inducing conversation, but misleading none the less. A case like this will not lead to a mandatory "requirement" for decryption or lack of encrypting of people's drive's but may set a precedent for future case's involving e-crime (electronic crime)

"Except you are innocent until proven guilty." That's why they throw you in jail then send you to court lol
Posted on Reply
#11
qubit
Overclocked quantum bit
m1dg3t said:
The thread title is misleading, great for inducing conversation, but misleading none the less.
No, it isn't. Check out the original article on c|net that I based this on: Judge: Americans can be forced to decrypt their laptops

See that title? Now check out the very first paragraph:
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.
Posted on Reply
#12
m1dg3t
It's still misleading, just because it was basically copy and pasted doesn't make it any more valid. The original poster was looking for the same effect, to incite interest/conversation on his post.

This case could lead to future instance's where there will be no need to argue the fact's (in a court of law) and you will just have to "pony up" your info.

Let's not argure semantic's :toast:
Posted on Reply
#13
erocker
Senior Moderator
Horrux said:
Yeah when a woman goes mortgage scam, we gotta stomp on that shit hard.

When the banks do it, we just give them more money if the scam fails.
You're tellling me how I think? No. When a person scams someone, justice should be served, when a bank scams someone, justice to be served. Where do you get that I sympathize with banks?! Ridiculous. :slap: So your resoning is might as well let everyone scam one another? Please. :rolleyes:
Posted on Reply
#14
Arctucas
Let me see if I understand this;

The authorities believe there is incriminating evidence on the hard drive, but are unable to obtain it, and may only obtain the alleged and unproven incriminating evidence through the forced and involuntary assistance of the owner of the hard drive?

How is forcing someone to reveal (by removing encryption) potentially (again, unknown and unproven) evidence that would be used to prosecute and convict that person of a crime not a violation of the Fifth Amendment to the Constitution of the United States of America?

You see, this is how the Progressive movement works.

They take away one slice of our liberty at a time, slowly paring away at the whole of our guaranteed rights and freedoms, until there is nothing left. Always in the 'best interest' of society as a whole, of course.

Remember the anecdote where if you drop a frog into a pot of boiling water it will jump out, but if you put the frog into a pot of room-temperature water and slowly turn up the heat, the frog will not even notice he is being boiled alive?

I believe that is a fair analogy of what the Progressives have been doing to the Constitution for the last one hundred years or so in America.

In my opinion, the woman should have refused to acknowledge ownership of the computer. In fact, she should have 'remained silent' completely.
Posted on Reply
#15
Steevo
Even if she is guilty she shouldnt have to provide it at all.


1) 5th amendment.

2) What if she had written in cypher on a pen a paper instead and the FBI was unable to read it and demanded she give over her cypher key?


3) Most important **Innocent until proven guilty** which is where the 5th amendment comes from. She may be innocent, and have nude pics of herself on there. She may be innocent and have invented the next best thing to sliced bread. It is up to the court to decide guilt, the prosecute to provide the evidence she is guilty, and she is free to do what she can to prove her innocence.


In the world they are suggesting, she is already guilty, and they are forcing her to prove her innocence, and it is up to the court to force her to confess to her crime.


Spanish inquisition, you are either a heretic, or a liar, either way you die, just hurry up and choose one.
Posted on Reply
#16
qubit
Overclocked quantum bit
m1dg3t said:
It's still misleading, just because it was basically copy and pasted doesn't make it any more valid. The original poster was looking for the same effect, to incite interest/conversation on his post.

This case could lead to future instance's where there will be no need to argue the fact's (in a court of law) and you will just have to "pony up" your info.

Let's not argure semantic's :toast:
No, it's not just sensationalism. Perhaps have a read of the original and you'll see what I mean. If you still disagree, then hey, that's fine and we can just leave it there. :)
Posted on Reply
#17
wahdangun
erocker said:
You're tellling me how I think? No. When a person scams someone, justice should be served, when a bank scams someone, justice to be served. Where do you get that I sympathize with banks?! Ridiculous. :slap: So your resoning is might as well let everyone scam one another? Please. :rolleyes:
i think he just being sarcastic.

Steevo said:
Even if she is guilty she shouldnt have to provide it at all.


1) 5th amendment.

2) What if she had written in cypher on a pen a paper instead and the FBI was unable to read it and demanded she give over her cypher key?


3) Most important **Innocent until proven guilty** which is where the 5th amendment comes from. She may be innocent, and have nude pics of herself on there. She may be innocent and have invented the next best thing to sliced bread. It is up to the court to decide guilt, the prosecute to provide the evidence she is guilty, and she is free to do what she can to prove her innocence.


In the world they are suggesting, she is already guilty, and they are forcing her to prove her innocence, and it is up to the court to force her to confess to her crime.


Spanish inquisition, you are either a heretic, or a liar, either way you die, just hurry up and choose one.
very true, my friend.
Posted on Reply
#18
Horrux
erocker said:
You're tellling me how I think? No. When a person scams someone, justice should be served, when a bank scams someone, justice to be served. Where do you get that I sympathize with banks?! Ridiculous. :slap: So your resoning is might as well let everyone scam one another? Please. :rolleyes:
I was just being sarcastic at "the law", not you.
Posted on Reply
#19
Sir Alex Ice
Her name sounds Romanian, so I suspect she is Romanian, like me. I'm a bit surprised to find out about this, usually we leave the crimes and infractions to our politicians and corrupt government officials.
Now about this ruling, I doubt it will be held after an appeal as it is highly irregular and unconstitutional. The police and authorities have every right to investigate, seize and search for evidence. However they have absolutely no right in making you in way to provide that evidence - it would be torture plain and simple.
Holding an accused in contempt because of refusal to offer access to encrypted data is reasons and basis for firing that judge. The obligation of the accused is to only submit the laptop in question to the police, FBI or whatever else agency deems it interesting to have a crack at it.
Furthermore the innocent till proven guilty principle is still in effect, forcing the accused to offer access to her laptop constitutes a premise to raise the objection that she has already been found guilty.
Posted on Reply
#20
douglatins
If i see a number of users supporting sopa, acta or anything else, i jetpack out of tpu.
She should just say i forgot. Period. They cant prove she didn't.
Posted on Reply
#21
MatTheCat
wahdangun said:

now i know why SOPA could happen in USA, if every one thinking like you then just change your country name to china 2.0 already.
The meaning of civil liberties and the importance of the legal system upholding civil liberties and freedoms at all costs is ironically beyond the mental capacities of the typical spud brains that the 'Land of the Free' spawns, which is probably why the USA stopped being the land of the free quite some time ago and is becoming ever increasingly less free by the day.
Posted on Reply
#22
DanTheBanjoman
Señor Moderator
Rule-R said:
We had a similar case here in Holland recently. The judge stated that it was proven that the evidence regarding the crime was on the PC/Laptop, thus subpoenad to decrypt it. (Meaning privacy wasnt violated because they knew what was on there)

Probably the laptop was taken for evidence, but they were unable to decrypt it.

When they cant prove the evidence is on the laptop the judge is talkin bollocks and the 5th has to be applied.
I surely hope not, American law should stay in America.
Posted on Reply
#23
digibucc
Arctucas said:
You see, this is how the Progressive movement works.
this isn't progressive, this is conservatism. they are the ones who stop at nothing to get what they want. see how that works? my point is just as valid as yours ;)

other than that I totally agree with you :)
Posted on Reply
#24
Kreij
Senior Monkey Moderator
Here's what I would do if I were the judge.
Tell the woman that the 5th amendment does stand and she is not required to reveal (or enter) the password. (That would be unconstitutional)
However, the data is key to the case against her, so she is to remain incarcerated (in jail) while the laptop is sent to the DOJ computer forensics department and they uncrypt it. Unfortunately the DOJ has a huge backlog of work, so it could be awhile. ;)
After all, they do have just cause to hold her and deny bail if they determine her a flight risk.
Posted on Reply
#25
Jetster
Seriously do you really think the Gov needs your password? In the most resent cases of Russian spy's that were caught do you think there data was not encrypted?
Posted on Reply
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