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  1. #1
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    Judge orders defendant to decrypt laptop

    Interesting cases. Encryption protection is becoming a standard option in most OS's and hardware manufacturers are headed in the same direction. While the question here is whether or not the defendant should be able to take the 5th (self-incrimination).... in this case I believe the judge has it right as there is already evidence the computer contains the data law enforcement is looking for as in the earlier case mentioned.

    My question is for a slightly more sophisticated case. There is freely available encryption software that is so good it makes it nearly impossible to tell if there is partition at all. If there is no prior knowledge of the computer possibly holding data as in the two cases listed here should a defendant be forced to decrypt a drive if no prior knowledge is available? IMHO no. Law enforcement should not be allowed to go "fishing". The burden of proof is on them.

    I wonder how the decryption works in these types of cases as well. I mean heck.. if you had incriminating data on a drive that could put you away for years and were given access would you unlock the volume? Tough choice.. be held in contempt or hand over the evidence to put yourself away. Not.

    Judge orders defendant to decrypt laptop

    (WIRED) -- A judge on Monday ordered a Colorado woman to decrypt her laptop computer so prosecutors can use the files against her in a criminal case.

    The defendant, accused of bank fraud, had unsuccessfully argued that being forced to do so violates the Fifth Amendment's protection against compelled self-incrimination.

    "I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," Colorado U.S. District Judge Robert Blackburn ruled Monday (.pdf).

    The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud.

    The case is being closely watched (.pdf) by civil rights groups, as the issue has never been squarely weighed in on by the Supreme Court.

    Full disk encryption is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power.

    The government had argued that there was no Fifth Amendment breach, and that it might "require significant resources and may harm the subject computer" if the authorities tried to crack the encryption.

    Assistant U.S. Attorney Patricia Davies said in a court filing (.pdf) that if Judge Blackburn did not rule against the woman, that would amount 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."

    A factually similar dispute involving child pornography ended with a Vermont federal judge ordering the defendant to decrypt the hard drive of his laptop.

    While that case never reached the Supreme Court, it differed from the Fricosu matter because U.S. border agents already knew there was child porn on the computer because they saw it while the computer was running during a 2006 routine stop along the Canadian border.

    The judge in the Colorado case said there was plenty of evidence a jailhouse recording of the defendant that the laptop might contain information the authorities were seeking.

    The judge ordered Fricosu to surrender an unencrypted hard drive by February 21. The judge added that the government is precluded "from using Ms. Fricosu's act of production of the unencrypted hard drive against her in any prosecution."
    "The most dangerous myth is the demagoguery that business can be made to pay a larger share, thus relieving the individual. Politicians preaching this are either deliberately dishonest, or economically illiterate, and either one should scare us...
    Only people pay taxes, and people pay as consumers every tax that is assessed against a business."


    -The Gipper


  2. #2
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    Re: Judge orders defendant to decrypt laptop

    Nope, the judge can order it but we all know how judge's orders can be over turned. I was looking for and didn't find if the laptop was a personal item of the defendant and/or did the bank have some monetary investment in the laptop. This is the dividing line. If personal and the state doesn't understand what they have found it is up to the defendant to educate the state at the defendant's discretion.

    If the bank in anyway had a monetary investment in the laptop and it doesn't matter when, the defendant can be compelled to unlock the laptop to all information known or not known to exsit on the laptop

  3. #3
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    Re: Judge orders defendant to decrypt laptop

    Interesting. Not giving up the password falls under 5th Amendment protection. Never thought about it like that.

    It's an interesting defense, but I don't think it should apply. The password is more akin to a key for a safe than free speech.

    I remember there was the San Francisco sys admin who refused to give the password to some vital city database after he was fired. I think he was arrested and found of contempt of court and held in jail for like 2 weeks before he finally coughed it up. These are interesting cases, it'll probably just be a matter of time before one finally goes to the Supreme Court and they rule on if a computer password is protected under the 5th Amendment or not.

  4. #4
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by falcon_view View Post
    Nope, the judge can order it but we all know how judge's orders can be over turned. I was looking for and didn't find if the laptop was a personal item of the defendant and/or did the bank have some monetary investment in the laptop. This is the dividing line. If personal and the state doesn't understand what they have found it is up to the defendant to educate the state at the defendant's discretion.

    If the bank in anyway had a monetary investment in the laptop and it doesn't matter when, the defendant can be compelled to unlock the laptop to all information known or not known to exsit on the laptop
    Uh? It doesn't matter if the bank had any interest in the laptop at all.

    The FBI wants the data on that laptop, they have a writ from the court saying she has to hand over the password, but she's taking the 5th Amendment, saying she has a right not to incriminate herself.

    The real argument here is, is the password evidence or testimony?

  5. #5
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by Keven View Post
    Interesting. Not giving up the password falls under 5th Amendment protection. Never thought about it like that.

    It's an interesting defense, but I don't think it should apply. The password is more akin to a key for a safe than free speech.

    I remember there was the San Francisco sys admin who refused to give the password to some vital city database after he was fired. I think he was arrested and found of contempt of court and held in jail for like 2 weeks before he finally coughed it up. These are interesting cases, it'll probably just be a matter of time before one finally goes to the Supreme Court and they rule on if a computer password is protected under the 5th Amendment or not.
    ^^^ That guy in SF actually crashed the city hall infrastructure... dumbarse.

    I get your "safe" analogy but I see it a little differently. As per my example.. I'm talking about a computer or drive where it has not been previously established there is incriminating evidence on it. In that instance I see the encrypted data as a safe law enforcement did not find and then forcing the defendant to give up the incriminating evidence. There is free software available so good that makes it plausible for someone to even deny there is any data on an encrypted drive. The volume/partition is simply not seen.
    "The most dangerous myth is the demagoguery that business can be made to pay a larger share, thus relieving the individual. Politicians preaching this are either deliberately dishonest, or economically illiterate, and either one should scare us...
    Only people pay taxes, and people pay as consumers every tax that is assessed against a business."


    -The Gipper


  6. #6
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by falcon_view View Post
    Nope, the judge can order it but we all know how judge's orders can be over turned. I was looking for and didn't find if the laptop was a personal item of the defendant and/or did the bank have some monetary investment in the laptop. This is the dividing line. If personal and the state doesn't understand what they have found it is up to the defendant to educate the state at the defendant's discretion.

    If the bank in anyway had a monetary investment in the laptop and it doesn't matter when, the defendant can be compelled to unlock the laptop to all information known or not known to exsit on the laptop
    This^^^

    Regardless of what the judge says, you can still say no. Be held in contempt or whatever. They can't torture the password out of you.

    Also, as far as I know, Windows encryption is easy to crack and is plagued with backdoors. Truecrypt seems like its the best in terms of free and even has guides on how to create a truly hidden partition and coins the term "plausible deniability": http://www.truecrypt.org/docs/?s=plausible-deniability

    I only encrypt my data in case someone breaks in and steals my big PC. I used to have a laptop and also had that encrypted in case it got stolen they couldnt get access to my personal data. Of course, that doesn't protect you if the PC/laptop is on and a hacker gets in...

  7. #7
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    Re: Judge orders defendant to decrypt laptop

    ^^^ And the "plausible deniability" angle is the one I'm mostly interested in even though I do not believe it applies in either of the cases mentioned in the article. If law enforcement does not have previous knowledge of data on the computer/drive/volume and does not know if there is data or not because it's so well encrypted, should the defendant be compelled to produce the data? IMHO no.
    "The most dangerous myth is the demagoguery that business can be made to pay a larger share, thus relieving the individual. Politicians preaching this are either deliberately dishonest, or economically illiterate, and either one should scare us...
    Only people pay taxes, and people pay as consumers every tax that is assessed against a business."


    -The Gipper


  8. #8
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by AMDScooter View Post
    ^^^ And the "plausible deniability" angle is the one I'm mostly interested in even though I do not believe it applies in either of the cases mentioned in the article. If law enforcement does not have previous knowledge of data on the computer/drive/volume and does not know if there is data or not because it's so well encrypted, should the defendant be compelled to produce the data? IMHO no.

    Sometimes the strong arm of the law can "compel" you ;-)

  9. #9
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by AMDScooter View Post
    ^^^ And the "plausible deniability" angle is the one I'm mostly interested in even though I do not believe it applies in either of the cases mentioned in the article. If law enforcement does not have previous knowledge of data on the computer/drive/volume and does not know if there is data or not because it's so well encrypted, should the defendant be compelled to produce the data? IMHO no.
    But I'll go back to my safe analogy. If I have a big steel safe in my basement that can't be opened by a locksmith or a blow torch and it's filled with kiddie porn, should I be compelled to produce the way to open it? I say yes, it's evidence in the case and not protected by the 5th.

  10. #10
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by Keven View Post
    But I'll go back to my safe analogy. If I have a big steel safe in my basement that can't be opened by a locksmith or a blow torch and it's filled with kiddie porn, should I be compelled to produce the way to open it? I say yes, it's evidence in the case and not protected by the 5th.
    I get that 100%. But what if the police search and find no safe? Should you be compelled to tell them the location of your hidden safe? Remember.. some of the freely available encryption software makes it plausible to deny there is even data there. If the police search your drive/computer and see no evidence.. should you be compelled by law to show them where the data is?
    "The most dangerous myth is the demagoguery that business can be made to pay a larger share, thus relieving the individual. Politicians preaching this are either deliberately dishonest, or economically illiterate, and either one should scare us...
    Only people pay taxes, and people pay as consumers every tax that is assessed against a business."


    -The Gipper


  11. #11
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by AMDScooter View Post
    I get that 100%. But what if the police search and find no safe? Should you be compelled to tell them the location of your hidden safe? Remember.. some of the freely available encryption software makes it plausible to deny there is even data there. If the police search your drive/computer and see no evidence.. should you be compelled by law to show them where the data is?
    Hmmm, I like that. But in this case, the FBI knows that the data is on her computer and encrypted. And in the court brief the US Attorney filed with the court (which was on the Wired link you posted), the FBI even has a transcript of a phone conversation she had with her attorney where they talked about the "secret stuff" on her laptop and how she doesn't have to give it up.

    So, they clearly know the proverbial safe is there.

  12. #12
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by Keven View Post
    Hmmm, I like that. But in this case, the FBI knows that the data is on her computer and encrypted. And in the court brief the US Attorney filed with the court (which was on the Wired link you posted), the FBI even has a transcript of a phone conversation she had with her attorney where they talked about the "secret stuff" on her laptop and how she doesn't have to give it up.

    So, they clearly know the proverbial safe is there.
    Yup.. and I conceded that point for the two cases in this story in my initial post. It's been established previously that the data is on the PC's in both cases. My question is about a yet to be tried case where the encrypted data is not found and there is no previous evidence to support that there is any. Should a defendant be compelled to assist the police fishing for data where they found none? My opinion.. no.
    "The most dangerous myth is the demagoguery that business can be made to pay a larger share, thus relieving the individual. Politicians preaching this are either deliberately dishonest, or economically illiterate, and either one should scare us...
    Only people pay taxes, and people pay as consumers every tax that is assessed against a business."


    -The Gipper


  13. #13
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    Re: Judge orders defendant to decrypt laptop

    I agree with Scooter about this, but I think it should really be addressed by the Supreme Court for future cases.
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  14. #14
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    Re: Judge orders defendant to decrypt laptop

    Quote Originally Posted by AMDScooter View Post
    \Should a defendant be compelled to assist the police fishing for data where they found none? My opinion.. no.
    Okay, I agree with that.

  15. #15
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    Re: Judge orders defendant to decrypt laptop

    What if you used the passphase: "Imnottellingyouthepassword"? How long would you hold out before you explained it? If you were sent to jail because you kept saying that, would you be entitled to compensation when you pointed out the Authorities' error?


    Out of interest, what's the US position on safes? The situation is different in practice because any safe can be broken. But what's the theory if the defendant had an unbreakable physical safe?



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