Judge: Americans can be forced to decrypt their laptops

[dustup]

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Judge: Americans can be forced to decrypt their laptops

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.
PGP Desktop: Even the FBI can't crack it!



PGP Desktop: Even the FBI can't crack it!
(Credit: Symantec)

Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be "compelled in any criminal case to be a witness against himself," which has become known as the right to avoid self-incrimination.

"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," Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.

Ramona Fricosu, who is accused of being involved in a mortgage scam, has declined to decrypt a laptop encrypted with Symantec's PGP Desktop that the FBI found in her bedroom during a raid of a home she shared with her mother and children (and whether she's even able to do so is not yet clear).

"I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals," Fricosu's attorney, Phil Dubois, said this afternoon. "I think it's a matter of national importance. It should not be treated as though it's just another day in Fourth Amendment litigation." (See CNET's interview last year with Dubois, who once represented PGP creator Phil Zimmermann.)

Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said.

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.

Read More Here: http://news.cnet.com/8301-31921_3-57364330-281/judge-americans-can-be-forced-to-decrypt-their-laptops/

[Undecided]

Not a surprise, but only with a search warrant.

[DougRich]

He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.

The comparison is inexact, to put it charitably. Requiring the phone company to aid in surveillance does not place it in the position of being compelled to incriminate itself. This judge is blowing smoke; he will be reversed.

[johnhp]

The comparison is inexact, to put it charitably. Requiring the phone company to aid in surveillance does not place it in the position of being compelled to incriminate itself. This judge is blowing smoke; he will be reversed.

Doug

You have penned a reasonable response to what you consider to be an overreach.  What is the difference between this woman and Rand?  Both subjected to what you see as overreach on the part of agencies.  You are doing a little less defense of her than Mr. Paul.

[nraforlife]

................................. This judge is blowing smoke; he will be reversed.

Reversed hell, This bastard needs to be impeached, disbarred and then made to run a gauntlet of every Citizen ever harassed by the TSA.

[DougRich]

You have penned a reasonable response to what you consider to be an overreach.  What is the difference between this woman and Rand?  Both subjected to what you see as overreach on the part of agencies.  You are doing a little less defense of her than Mr. Paul.

I see very few if any parallels between these two situations, but even so - how, exactly, am I "doing a little less defense of her", when what I'm doing is suggesting that she is legally justified in keeping her mouth shut?

[dustup]

I see very few if any parallels between these two situations, but even so - how, exactly, am I "doing a little less defense of her", when what I'm doing is suggesting that she is legally justified in keeping her mouth shut?

.....right or wrong has nothing to do with it....John doesn't like you agreeing with.....THE OTHER SIDE....he would rather be stripped searched in public than agree with.........THE OTHER SIDE! 

[johnhp]

I see very few if any parallels between these two situations, but even so - how, exactly, am I "doing a little less defense of her", when what I'm doing is suggesting that she is legally justified in keeping her mouth shut?

They are both about overreaching on the part of a government entity.  This person forced to decrypt her email, Mr Paul asked to be searched in a more thorough manner.  Both relatively personal intrusions, if you will.  In your response here, though it is breif, the person involved makes little or no appearance.  Yet in the Paul story he is front and center.  Here there was no discussion about the possible forced decryption of highly personal information.

[johnhp]

.....right or wrong has nothing to do with it....John doesn't like you agreeing with.....THE OTHER SIDE....he would rather be stripped searched in public than agree with.........THE OTHER SIDE!  

i do not care with whom Doug may agree or not.  i do appreciate the fact that he does not throw a disco party in his own feces the way you do.

[DougRich]

They are both about overreaching on the part of a government entity.  This person forced to decrypt her email, Mr Paul asked to be searched in a more thorough manner.  Both relatively personal intrusions, if you will.  In your response here, though it is breif, the person involved makes little or no appearance.  Yet in the Paul story he is front and center.  Here there was no discussion about the possible forced decryption of highly personal information.

Some stories are, in and of themselves, less complex than others, and require less comment - from me, anyway.

[johnhp]

Some stories are, in and of themselves, less complex than others, and require less comment - from me, anyway.

Fair enough, i suppose.

[notoc]

Interesting dilemma ... no mention of the ACLU getting involved?

Would have been simpler if her laptop had been seized by US Customs.

US customs can and will seize laptops and cellphones, demand passwords

The ACLU is bringing two cases against federal agents over the seizure of gadgets at airports and other ports of entry—a discovery process carried out in "Constitution-free zones" that requires no warrants, no reasonable suspicion of guilt, nor any adherence to Fourth Amendment guarantees against unreasonable search and seizure.

[]

The Customs and Border Protection agency says the power to seize laptops is necessary to find information about terrorists, drug smugglers, and other criminals trying to enter the country. Of the more than 340 million people who travelled across the US border in 2011, about 5,000 had laptops, cellphones, iPods, or cameras searched.


http://nakedsecurity.sophos.com/2012/01/09/us-customs-can-and-will-seize-laptops-and-cellphones-demand-passwords/

[DougRich]

Interesting dilemma ... no mention of the ACLU getting involved?

I think I read somewhere that they were - on the woman's side, naturally.

Would have been simpler if her laptop had been seized by US Customs.

Yes, it certainly would make it "simpler" for the government if they could manage to keep people in that so-called "Constitution-free zone", wouldn't it? Unfortunately, that's not where folks are tried and/or incarcerated, so until they start holding court in those zones...

[Case_Closed]

Did you know that when you enter Canada with a laptop, they sometimes search the downloads to see if you have any pirated software, music, etc., and if they do, they confiscate it?

[notoc]

I think I read somewhere that they were - on the woman's side, naturally.

Yes, it certainly would make it "simpler" for the government if they could manage to keep people in that so-called "Constitution-free zone", wouldn't it? Unfortunately, that's not where folks are tried and/or incarcerated, so until they start holding court in those zones...

I can't find any information on the consequences of refusing to disclose a password to US Customs.