Defendant Ordered to Decrypt Own Laptop

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Defendant Ordered to Decrypt Own Laptop

http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/

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 Feb. 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.?

Do you see this as self incrimination just because their law enforcement isn't able to decrypt it themselves?

This is part of a response to this article that was posted:

There is no difference in this and someone who is *suspected* of stealing something and then burying it in the woods and then being legally forced by the state to reveal a burial site or be punished, irrespective of that person's status as a 'suspect' rather than proved guilty. Ultimately, it equates to this in this case: If you are overheard telling someone you have information on your hard disk that is 'encrypted', then you must be guilty of something and so the State has a right to force you to reveal it to them.

If she is not going to be prosecuted for any evidence on the laptop, would it or should it be her responsibility instead of law enforcement's to decrypt the laptop?

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Im not sure where I stand on this, and am a little confused about them not being able to use the production of the info as evidence....does that mean they cant use the info? Whats the point then. So I think it must not mean that.

However, what I wanted to say is that I dont agree that it is like having to show where something is buried or be punished, it is more like them saying 'dig in this spot, or be punished', to continue that analogy. They are not asking her to 'show' them anything. They know where the info is, they are just unable to get to it. Chances are there will be incriminating evidence against her on the drive, but there is the possibility that there isnt any.

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"Beertje" wrote:

http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/

Do you see this as self incrimination just because their law enforcement isn't able to decrypt it themselves?

If she is not going to be prosecuted for any evidence on the laptop, would it or should it be her responsibility instead of law enforcement's to decrypt the laptop?

It doesn't say that she won't be prosecuted for evidence on the laptop, it only states that the act of unlocking it can't be used against her. For instance they can't say that just because she knew the password that proves that she was the one who put the files on the computer that they find.

I think it is self-incrimination. My analogy is that it is like she put something in a safe and they are making her provide them with a key because by breaking into the safe they might destroy some of the evidence inside.

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"GloriaInTX" wrote:

It doesn't say that she won't be prosecuted for evidence on the laptop, it only states that the act of unlocking it can't be used against her. For instance they can't say that just because she knew the password that proves that she was the one who put the files on the computer that they find.

I think it is self-incrimination. My analogy is that it is like she put something in a safe and they are making her provide them with a key because by breaking into the safe they might destroy some of the evidence inside.

Ah, gotcha. I think it's self incrimination as well and law enforcement have the burden to prove their case, not her.

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"GloriaInTX" wrote:

It doesn't say that she won't be prosecuted for evidence on the laptop, it only states that the act of unlocking it can't be used against her. For instance they can't say that just because she knew the password that proves that she was the one who put the files on the computer that they find.

I think it is self-incrimination. My analogy is that it is like she put something in a safe and they are making her provide them with a key because by breaking into the safe they might destroy some of the evidence inside.

But in that case, they could subpoena the key, and she would be obligated to provide it. They would, however have to write a warrant giving evidence of why they thought there was evidence in the safe....which is what they needed to do in this case.

The more I think about it, the more I dont think this is self-incrimination, and think that this may make sense with the way technology is heading these days. I reserve the right to change my mind though at this point, as I am not 100% on this Smile

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"ftmom" wrote:

But in that case, they could subpoena the key, and she would be obligated to provide it. They would, however have to write a warrant giving evidence of why they thought there was evidence in the safe....which is what they needed to do in this case.

The more I think about it, the more I dont think this is self-incrimination, and think that this may make sense with the way technology is heading these days. I reserve the right to change my mind though at this point, as I am not 100% on this Smile

How could a judge subpoena a key to a suspect? That'd be like subpenaing for a gun the suspect may have used in a crime they don't currently have access to but know there's one registered to them. I've never heard of them ordering a suspect to provide a key. They don't need a key to open a physical file or a house they have a warrant to search and seize property from.

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"Beertje" wrote:

How could a judge subpoena a key to a suspect? That'd be like subpenaing for a gun the suspect may have used in a crime they don't currently have access to but know there's one registered to them. I've never heard of them ordering a suspect to provide a key. They don't need a key to open a physical file or a house they have a warrant to search and seize property from.

But they can and do subpoena guns that are registered to a suspect, warrants to search houses are often based on (amoungst other things) the fact that the suspect is know to have the same type of weapon that was used in a crime......if they have enough evidence that the gun was used in the crime. As they could subpoena a key to a safe if the suspect has acknowledged that the safe is theirs and they have enough evidence suggesting there is evidence in the safe. It is up to a judge to determine if there is enough evidence to justify getting a warrant for these things. Just as they can subpoena a specific coat or pair of shoes if the evidence points that way.

If anything, this woman still has more options. If the info on the computer is 'bad' enough, she could still chose to not decrypt it and instead take the punishment of being in contempt of court, potentially a lesser charge.

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"ftmom" wrote:

But they can and do subpoena guns that are registered to a suspect, warrants to search houses are often based on (amoungst other things) the fact that the suspect is know to have the same type of weapon that was used in a crime......if they have enough evidence that the gun was used in the crime. As they could subpoena a key to a safe if the suspect has acknowledged that the safe is theirs and they have enough evidence suggesting there is evidence in the safe. It is up to a judge to determine if there is enough evidence to justify getting a warrant for these things. Just as they can subpoena a specific coat or pair of shoes if the evidence points that way.

If anything, this woman still has more options. If the info on the computer is 'bad' enough, she could still chose to not decrypt it and instead take the punishment of being in contempt of court, potentially a lesser charge.

If that's the case, why aren't they subpenaing all suspects who are criminally charged for them to provide their weapons or own evidence that is missing? To me, that is self incriminating. I've only known of judges subpenaing witnesses or evidence/information others have in their possession against/for the suspect, not the actual suspect who's being charged.

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"Beertje" wrote:

If that's the case, why aren't they subpenaing all suspects who are criminally charged for them to provide their weapons or own evidence that is missing? To me, that is self incriminating. I've only known of judges subpenaing witnesses or evidence/information others have in their possession against/for the suspect, not the actual suspect who's being charged.

I am no legal expert, but my understanding is that they can only subpoena (I will learn to spell that by the end of this debate!) anything, if they have enough evidence to convince a judge that it is relevant to the case. And they can only subpoena a specific item. For example, the exact gun that is registered to the suspect, not any gun they own. So they pretty much have to be able to prove that there is something in the safe before they can get the key to open it.

As an example of this (not the same, but one I know for sure) to get a warrant to search a house for drugs, they have to have 3 separate, non-conflicting, first hand, reports of drugs being sold out of that house. If they have 3 reports, but 2 conflict with each other, then they have to toss them both and they really only have 1.

My point with that, is that it is actually really hard to get enough proof for any kind of warrant. There are many cases where the police 'know' who the culprit is, they just dont have enough to prove it. So, I think that if they have enough evidence to prove that the info in this computer is relevant, then they should be able to force her to open it.

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Suspects are fingerprinted and the courts can order DNA samples. If that isn't self-incrimination, why would being order to decrypt the laptop?

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I think that the burden of proof lies with the prosecution, and if they don't have their own experts to be able to hack into that computer and get out the info that they need (just like they do with tons of other cases... hello Casey Anthony) then I guess they don't have a case. They shouldn't be able to force her to get into her own laptop. They obviously had enough evidence to make an arrest... they just need to move forward and either prosecute her for what evidence they have against her or let her go. It may not be right or fair, but it is the law.