Judge Orders Defendant to Decrypt Laptop

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A district court judge in Colorado has ordered a woman to decrypt her laptop's hard drive and turn it over to the courts. Apparently the court rejected the woman's 5th Amendment argument and has given her a one month dealine to turn over the unencrypted drive.

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. The judge ordered Fricosu to surrender an unencrypted hard drive by February 21.
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I really want one of these cases to make it to SCOTUS.

It seems like a pretty flimsy argument to say that compelling someone to decrypt information is substantially different from compelling them to provide evidence against themselves by some other method, like revealing where a body is buried.

The government wants to use the idea that since they aren't compelling the defendant to produce the password, only to utilize it, that it's somehow fine.
 
I disagree with the ruling on the premise that, yes, it is still self-incrimination. Regardless of the implications to the ability to prosecute crimes, I don't think anyone should be forced to provide evidence against themselves. Granted, the case of the Border agents versus the child porn guy ... I can see that point. They had seen the images on the screen before the guy shut it down and hid behind encryption. The act of hiding the data so it can't be shown in court I can see the legal point ... the guy already incriminated himself when going through customs so the cat is out of the bag. But, when you only have a theory that the data is on the laptop you get a search warrant to secure the laptop. It doesn't mean that the person being investigated has to sit down and show you how to access the data or where it is on the drive. That is pure self-incrimination and I feel the court is really stretching existing law to make this judgement.
 
Accidents happen. Perhaps she gets into one and gets a slight concussion which just so happens to cause her to forget the pass phrase. What then? Incriminate her for something beyond her control?
 
We think you have a body buried in your 5 acre back yard somewhere, as per the 5th amendment we can't make you tell us where that body is, so... just go bring it to us.

Physical encryption, decryption must somehow different than electronic encryption, decryption.....
 
Dev1ant said:
Accidents happen. Perhaps she gets into one and gets a slight concussion which just so happens to cause her to forget the pass phrase. What then? Incriminate her for something beyond her control?
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If I was looking for an encryption scheme for my drive, I'd want something that does, in fact, prevent me from decrypting it in the event the computer is seized, no matter how much I want to.
 
The judge ordered Fricosu to surrender an unencrypted hard drive by February 21.
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"a hard drive"

just buy one with same capacity, fill with random data; give it to the judge.

he's asking for any old HDD ;)
 
should be a way to set up encryption where if you enter one passphrase it lets you in, enter a different one and it decrypts all but a certain folder or completely overwrites a folder with garbage data.

Hmm....*lightbulb*
 
HydroBudz said:
should be a way to set up encryption where if you enter one passphrase it lets you in, enter a different one and it decrypts all but a certain folder or completely overwrites a folder with garbage data.

Hmm....*lightbulb*
Click to expand...

That's a great idea! "Oh shit, caps lock was on!" "Sorry judge!"
 
Ididar said:
I disagree with the ruling on the premise that, yes, it is still self-incrimination. Regardless of the implications to the ability to prosecute crimes, I don't think anyone should be forced to provide evidence against themselves. Granted, the case of the Border agents versus the child porn guy ... I can see that point. They had seen the images on the screen before the guy shut it down and hid behind encryption. The act of hiding the data so it can't be shown in court I can see the legal point ... the guy already incriminated himself when going through customs so the cat is out of the bag. But, when you only have a theory that the data is on the laptop you get a search warrant to secure the laptop. It doesn't mean that the person being investigated has to sit down and show you how to access the data or where it is on the drive. That is pure self-incrimination and I feel the court is really stretching existing law to make this judgement.
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Not sure if there really is a difference, since if they know there is proof of your illegal activity on the drive or just suspect it I don't think the argement will vary at all.
 
HydroBudz said:
should be a way to set up encryption where if you enter one passphrase it lets you in, enter a different one and it decrypts all but a certain folder or completely overwrites a folder with garbage data.

Hmm....*lightbulb*
Click to expand...

You gave me an idea too :D.
 
Fuck that. It's self incrimination.

But hey, the government already trampled on every other right we got, so what if we lose the fifth, right?
 
Honestly, at this point, I don't see why there isn't some kind of effort to replace judges with computers -- who knows, perhaps there is. While I am aware that a machine would inevitably produce all sorts of incoherent or absurd findings, how often do we hear of a human judge doing the same thing? At any rate, my point is that judges should be drawing conclusions from extant law and court proceedings, so a machine which is capable of digesting and correlating all of this information could likely be designed to do so much more proficiently.

Of course, then we would just have more evidence than ever that our system of law is simply far too expansive, overreaching, and beyond comprehension.

/rant
 
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.
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It's the same thing as the border agents case. They have evidence that evidence they need is on the drive. So far that seems to be the deciding factor. I agree that there is a difference in being compelled to produce self incriminating evidence and hiding/destroying evidence. I don't think the judge would have compelled her without the recording. This is a lesson in shut you fucking mouth.

People seem to think that SCOTUS would be more equipped to handle this but I think there needs to be a lot of case law testing this first. Most SCOTUS decisions are based on case law and without that it would be up to an arguable less tech educated group of judges to decide.
 
if you admit that you have or know the password, you can be compelled to present it.

if you "forget" the password, there is nothing that you can give them. its impossible for someone else to prove that something exists in your brain without you admiting it.
 
Judge/Prosecutor: We order you to decrypt this drive to reveal your manifesto that reveals all the people you've killed and all the children you've raped.
Defendant: I'd rather not.
J/P: You don't have a choice, we order you to and thus you must comply.
D: Yeah...No I don't think so. If your case is based solely on the merit that all the incriminating evidence is locked away behind a code in my mind. I'm going to have to pass on that. 13 life sentences...or a couple years for contempt of court...you do the math.
J/P: But...but but, we order you to...you can't not do what your government tells you...that's not fair.
D: Them's the breaks...
 
HydroBudz said:
should be a way to set up encryption where if you enter one passphrase it lets you in, enter a different one and it decrypts all but a certain folder or completely overwrites a folder with garbage data.

Hmm....*lightbulb*
Click to expand...

That's the plausible deniability volume. I believe in TrueCrypt, it appears to be the same size as the normal drive, but the blank areas are actually the still encrypted real volume. You can overwrite the real volume unknowingly, so it's basically the same as deleting.
 
heatlesssun said:
If the court has a warrant the 5th Amendment doesn't apply.
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This is wrong. Read the Amendment. There is a difference between self incriminating evidence and hiding evidence the government knows is there and has proof of.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Click to expand...
.
 
heatlesssun said:
If the court has a warrant the 5th Amendment doesn't apply.
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I'm not a big law guy, but warrant or not, doesn't it have to be produced by the prosecutor, regardless? Sure, you can't stop them from getting it, but you don't have to provide it yourself.

Letting the cops go into your house vs Finding it and handing it to the cops.
 
JMke said:
"a hard drive"

just buy one with same capacity, fill with random data; give it to the judge.

he's asking for any old HDD ;)
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Pretty much. Prove that this isn't the decrypted contents of my hard drive. What's that, you can't? How about that.
 
So you have to give them the laptop, but not the key. Say you have a safe, can you be legally obligated to hand over the combination? Say you have a house, can you be legally obligated to let them in? Same principal.
 
at least they're not holding her indefinitely....just pay a chick in jail to knock her on the head :). Or if you are cheap, start a fight and keep your cash :-D
 
Oldie said:
So you have to give them the laptop, but not the key. Say you have a safe, can you be legally obligated to hand over the combination? Say you have a house, can you be legally obligated to let them in? Same principal.
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With a legal, judge-signed search warrant, yeah, you kinda are ;).
 
GenesisFactor said:
With a legal, judge-signed search warrant, yeah, you kinda are ;).
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Actually, I don't think you have to actually let them in, but if you don't they can legally break down your door. So you lose in the end. Same thing with thsi harddrive. They can force the password... well... they can anyway.
 
Ididar said:
I disagree with the ruling on the premise that, yes, it is still self-incrimination. Regardless of the implications to the ability to prosecute crimes, I don't think anyone should be forced to provide evidence against themselves. Granted, the case of the Border agents versus the child porn guy ... I can see that point. They had seen the images on the screen before the guy shut it down and hid behind encryption. The act of hiding the data so it can't be shown in court I can see the legal point ... the guy already incriminated himself when going through customs so the cat is out of the bag. But, when you only have a theory that the data is on the laptop you get a search warrant to secure the laptop. It doesn't mean that the person being investigated has to sit down and show you how to access the data or where it is on the drive. That is pure self-incrimination and I feel the court is really stretching existing law to make this judgement.
Click to expand...

The fact that they saw the images is Just Cause for search. Just the same as if a cop looked through your window and saw weed.

The police are still responsible for obtaining that evidence. They can't look in your window, see weed. Then enter your home, ok under just cause. Search... not find anything. Then demand you tell them where the weed is... or throw you in the slammer for hindering investigation etc
 
Kaos_Drem said:
Judge/Prosecutor: We order you to decrypt this drive to reveal your manifesto that reveals all the people you've killed and all the children you've raped.
Defendant: I'd rather not.
J/P: You don't have a choice, we order you to and thus you must comply.
D: Yeah...No I don't think so. If your case is based solely on the merit that all the incriminating evidence is locked away behind a code in my mind. I'm going to have to pass on that. 13 life sentences...or a couple years for contempt of court...you do the math.
J/P: But...but but, we order you to...you can't not do what your government tells you...that's not fair.
D: Them's the breaks...
Click to expand...

LOL "that's not fair".
 
Warrants are based on facts, not assumptions. The prosecutor would have to present facts that incriminating files do exist in order to obtain a search warrant.
 
Serpent said:
Actually, I don't think you have to actually let them in, but if you don't they can legally break down your door. So you lose in the end. Same thing with thsi harddrive. They can force the password... well... they can anyway.
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A friend of mine explained it to me this way. The law is old. It doesn't yet well define what a computer is and until it does it has to be explained in ways that are defined. Hence a computer is currently treated like a satchel or a case. You can be compelled to open a case or held in contempt until you do.
 
I Am Not A Lawyer

that said, here's my take on it (and you probably won't like it)

I'm pulled over by a policeman. I'm asked to exit the vehicle and, when I do, I make sure my windows are rolled up and I lock my doors. My vehicle is now considered no different than my home, according to the 4th amendment protections of the U.S. Constitution.

There are only 3 scenarios in which the police may search my car

1 -- Probable Cause. There's a bloody knife and a severed human head in plain view. (oversimplifications are used to avoid confusion)
2 -- I waive my 4th amendment rights and let them search the car because I know beyond a shadow of a doubt there is nothing illegal in it and I have nothing better to do that afternoon.
3 -- Persuant to the Due Process clause of the 14th amendment, they present their request and supporting evidence to a judge and request a warrant to search my car, and it is approved.

In this case, #3 would seem to be the only applicable scenario, but...

In this case, It's actually #3 and #1.

"Due Process" (#3) means they had to go to a judge with probable cause evidence of #1 in support of their request.

The only question at this point is: Do they have ample supporting evidence?

Their evidence is an undisputed voice recording where the defendant admits there is further additional evidence on the laptop.

Like it or not, that is all that is needed to satisfy the Due Process clause of the 14th amendment.

They -are- allowed to search the drive because the state followed Due Process and did not deprive defendant of their rights.

The 4th amendment only guards against -unreasonable- searches and seizures, and requires any warrant to be judicially sanctioned and supported by probable cause.

The Govt in this case has more than ample probable cause, based on the recording, and the recording is ample evidence that supports their request for production of the decryption key.

The state has everything it needs to satisfy the Due Process clause of the 14th amendment, and that means they are not violating the 4th amendment rights of the defendent.

And when I started this reply, I was completely in the other camp...UNTIL I researched the applicable amendments and heard they had voice recording of the defendant admitting there was additional evidence on the laptop...
 
HydroBudz said:
Warrants are based on facts, not assumptions. The prosecutor would have to present facts that incriminating files do exist in order to obtain a search warrant.
Click to expand...

They presented evidence in the form of a tape recording from prison of her admitting the evidence is there.
 
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