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Child porn suspect's lawyer will have time to prepare a Fifth Amendment defense

A court battle is playing out in the U.S. District Court for the Eastern District of Wisconsin regarding whether the Fifth Amendment of the U.S. Constitution prevents federal prosecutors from forcing a suspect (or companies) to turn over the passwords to encrypted data that would ostensibly be used as evidence against the suspect.

I. To Decrypt or Not to Decrypt

The issue of forced decryption was a subject of academic sparring in the 1990s as the method grew in use, but was not put to the test until 2009 when Judge William Sessions of the U.S. District Court for the District of Vermont ruled [PDF] that forcing a suspected child pornographer to turn over his PGP passphrases did not violate the self incrimination provisions of the Fifth Amendment, which read:


No person ... shall be compelled in any criminal case to be a witness against himself...

Since then in 2010 Judge Paul Borman of the U.S. District Court for the Eastern District of Michigan offered up an opposite opinion in another child pornography case, ruling [PDF] that forced decryption would amount to self incrimination. But in 2012 Judge Robert Blackburn of the U.S. District Court for the District of Colorado tossed another vote of support for mandatory decryption, forcing [PDF] a female mortgage fraud suspect to decrypt her laptop.

FBI Agents
Federal prosecutors have fought for the ability to force suspects to surrender passwords to their computers/encrypted files. [Image Source: Global Elite]

That latter case offered up an interesting twist when the suspect claimed to have "forgot" her password, leading to fresh legal questions (could she be punished for forgetting her password?).  Ultimately the question was left unanswered, as shortly thereafter agents were able to decrypt her laptop without the password.
Mr. Forgetful
A Colo. woman offered up a novel defense to forced decryption, arguing she "forgot" her password -- the question ultimately remained unresolved [Image Source: Roger Hargreaves]

The case against the accused Wisconsin child pornography suspect -- Jeffrey Feldman -- has been equally contentious.

U.S. Magistrate William Callahan Jr. initially this April ruled [PDF] that the suspect was protected under Fifth Amendment privileges, writing:

This is a close call, but I conclude that Feldman’s act of
production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

But last month Judge Callahan was presented new evidence by investigators with the U.S. Federal Bureau of Investigations, leading him to reverse his decision.  He discussed the new evidence commenting [PDF]:

The decrypted part of Feldman’s storage system contains an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders. In these folders, agents found approximately 707,307 files. Among those files were numerous files which constitute child pornography.

Furthermore, he points to photographs and financial records in other folders as establishing that this was indeed the suspect's hard-drive and that he had access to the encryption tools.  Thus he ordered that Mr. Feldman assist agents immediately or face contempt of court and jail time.

II. Child Porn Suspect Gets Temporary Reprieve to Prepare Defense

But in the eleventh hour Mr. Feldman's attorney's appeal to district Judge Rudolph Randa succeeded, buying his attorney the time he needed to prepare a Fifth Amendment defense.  The contempt of court threat was stayed [PDF] and a hearing was scheduled for this fall, with both sides being asked to submit briefs.

Note, some news sites are mistakenly saying the Judge Randa ruled that the Fifth Amendment protected Mr. Feldman.  This is not the case.  Rather, the judge ruled that it is reasonable for his attorney to have the time to prepare a defense around that argument in this important case.
hard drive
The Wisc. case has seen many twists and turns, but agents have already decrypted some of the suspect's files, which they say contain child pornography.

Thus the final decision remains very much up in the air.  (Of course even if Mr. Feldman loses, he could always try the tactic that he "forgot" his passphrase.)

Currently agents have decrypted approximately 20 percent of the suspect's 20 TB storage system.  As mentioned, multiple child pornography files have reportedly been found.

But Mr. Feldman's attorney, Robin Shellow, is insistent on fighting the decryption order, arguing there are bigger civil liberty questions at stake.  She comments to CNET:

I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment. This case is going to go many rounds. Regardless of who wins the next round, the other side will appeal, invariably landing in the lap of the Seventh Circuit Court of Appeals and quite possibly the U.S. Supreme Court. The grim reality facing our country today is one where we currently have a percentage of our population behind bars that surpasses even the heights of the gulags in Stalinist Russia. On too many days criminal lawyers lose all rounds. But for today: The Shellow Group: 1, Government: 0

Civil libertarians point out that the Supreme Court has ruled that "compelled testimonial communications" -- such as a suspect's thoughts -- are protected by the Fifth Amendment and argue that passwords/passphrases are essentially "thoughts" as they're stored in the suspect's brain.

Prosecutors, meanwhile, have pointed to Supreme Court rulings allowing prosecutors to force suspects to provide fingerprints, blood samples, voice recordings, or the key to storage areas that contain incriminating evidence.  The latter example (the key) they argue is particularly pertinent/analogous, as a key protects a location from outsiders, much like its digital counterpart, the password.

Source: U.S. District Court for the Eastern District of Wisconsin via Wired





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