backtop


Print 125 comment(s) - last by Iketh.. on Jan 27 at 12:41 AM

Colorado U.S. District Judge Robert Blackburn said the Fifth Amendment does not protect her from the order

A Colorado woman was told to decrypt her laptop in court on Monday in order to aid prosecutors in her bank fraud case.

Ramona Fricosu, the defendant who was accused of bank fraud in 2010, had her laptop seized by authorities during the investigation. However, authorities stumbled upon a big problem while attempting to search her hard drive -- it was encrypted.

Full disk encryption, which prevents unauthorized access to data storage, is an option found in operating systems like Mac OS and Windows. The encryption can take decades to break, and if authorities tried to crack it, it could damage the computer.

That's why Colorado U.S. District Judge Robert Blackburn ordered that Fricosu decrypt her hard drive and return it to the court so prosecutors can use her files against her in the bank fraud case.

Fricosu used the Fifth Amendment to protect herself. She argued that the Fifth Amendment protects her from compelled self-incrimination, and that the judge's order violates this. However, Blackburn didn't agree.

"I conclude that the Fifth Amendment is not implicated by requiring production of unencrypted contents of the Toshiba Satellite M305 laptop computer," said Blackburn.

Assistant U.S. Attorney Patricia Davies backed Blackburn's order, saying that allowing encrypted content to defeat authorities would send the wrong message to other criminals. In her words exactly, it would be a "concession to her [Fricosu] 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."

Blackburn has ordered Fricosu to return the unencrypted hard drive by February 21. Civil rights groups are keeping a close eye on the case.

Sources: Wired, Fox News



Comments     Threshold


This article is over a month old, voting and posting comments is disabled

RE: Send the wrong message?
By GreenEnvt on 1/24/2012 10:04:46 AM , Rating: 4
I'm normally all for privacy, but in a situation like this, where there is probable cause to believe she commited a crime, if a judge orders the person to give up the password, I am all for it. Otherwise this becomes a massive hole criminals can hide in.

Of course almost all criminals will simply "forget" the password.


RE: Send the wrong message?
By ElementZero on 1/24/2012 10:08:43 AM , Rating: 2
Well yeah, she could just not follow the judges orders, but I'm sure the judge would just nail her for that too so she's screwed either way. Although I do have to wonder about what the penalty for failing to follow the judges orders are vs the penalty for being found of committing bank fraud - perhaps some legal expert can answer that.


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 10:15:33 AM , Rating: 5
Indeed, she could be charged with contempt, which is typically a fine and minimum jail time. Compare that to the charges being brought against her. I'd take contempt.


RE: Send the wrong message?
By mattclary on 1/24/2012 10:41:40 AM , Rating: 2
There have been cases where they keep you in jail until you give them what they want, I believe.


RE: Send the wrong message?
By Obujuwami on 1/24/2012 11:23:21 AM , Rating: 3
That, too, is illegal. They can't incarcerate you indefinitely until you give them what they want, they would have to levy multiple contempt orders against you. On top of that, it would be a publicity and financial nightmare as once the word gets out that the government is doing this, they will have several rights groups up in arms suing on behalf of the person in jail. This would be a major drain on the government's resources and they would broker a deal at that point.

What would be smarter is to just set up bit locker and have access be dependent on a flash drive, password, and a chip on the mobo. Then intentionally wipe the flash drive...that would piss off authorities AND it would be a lesser crime. I doubt that the courts would understand what happened and it's easier to hide that little snafu than just saying you forgot a password.

Food for thought!


RE: Send the wrong message?
By HrilL on 1/24/2012 11:33:34 AM , Rating: 5
"Your honor I haven't seen the flash drive since the police took everything from my home. If they lost it then it is not my fault that they won't be able to decrypt my hard drive."


RE: Send the wrong message?
By quiksilvr on 1/24/2012 12:45:33 PM , Rating: 3
That would have worked had she not opened her yap and said "No, I won't." This means that she very well does have the means to access her hard drive but won't do it, even though they have a perfectly legal warrant (and it is clear she committed Bank fraud and is totally guilty).


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 1:06:52 PM , Rating: 5
If she did commit bank fraud and is guilty then it's up for the prosecution to prove. But they can't. Never heard of innocent until proven guilty?

The burden is upon the DA to prove she is guilty. It isn't upon her to prove her innocence. Without proof they have no case.


RE: Send the wrong message?
By dragonbif on 1/24/2012 12:30:05 PM , Rating: 3
It is not really illegal per say. If you are held in contempt for a reason they can hold you until you are no longer in contempt. Say you keep disrupting the court proceeding, the judge can send you back to lock up and bring you back the next day. If you keep doing it your case will not get anywhere and you spend most of your time in county.

For the laptop most states now consider digital files the same as physical files. For example in the past if you have a safe with possible evidence in it the court can order you to open it. If you refused or say you forgot they could hold you in contempt. Some consider an encrypted hard drive to the same. However it is true they do not want to send you to county jail for the rest of your life so they would give you an offer after a year or 2. They would let you plead guilty and give you your sentence accordingly. And may consider time spent.

One of the purposes of the 5th is so the court cannot put you in a position where you have to break the law. It is considered a crime to lie under oath and if they put the person on trial on the stand they would have to lie to protect themselves. Unlocking a safe, opening a door, or decrypting a hard drive is not considered self-incrimination but allowing access to possible evidence.

This is not the first time this has come up and it won't be the last. It has come up many times from everything from fraud to child porn cases.

I'm not saying I agree with it I am just saying how it currently is. I would hate for child porn people to be able to get away with it just because of bitlocker =(

By the way people have sued for holding someone in contempt but the judge can toss out the case if they cant prove/show the possiblility it was not done legally at the get go. Not all lawsuits have their day in court.


RE: Send the wrong message?
By Hieyeck on 1/24/2012 1:44:42 PM , Rating: 2
IANAL, but wouldn't the statute of limitations apply here as well? If they can't prove your guilt within X time, they MUST let you go (barring crimes already exempt from the statute).


RE: Send the wrong message?
By dragonbif on 1/25/2012 12:49:02 PM , Rating: 2
Nope the statute of limitations would not apply because she has been charged, they just need more data. Contempt is a crime and so you can get stent back to jail until you comply. They cannot send you to the state prison they have to keep you local (close to the court house). The reason is they have to review it every so often. So as long as the judge does not dismiss the case it is your fault the case is not proceeding and not the states.

The statute of limitations has more to do with charging someone within a certain amount of time.


RE: Send the wrong message?
By Schrag4 on 1/24/2012 1:53:50 PM , Rating: 2
quote:
It is not really illegal per say. If you are held in contempt for a reason they can hold you until you are no longer in contempt. Say you keep disrupting the court proceeding, the judge can send you back to lock up and bring you back the next day. If you keep doing it your case will not get anywhere and you spend most of your time in county.


Are you saying they would bring you back day after day, indefinitely? I really doubt that, but to be honest I don't know. Anyone have some insight?

quote:
I'm not saying I agree with it I am just saying how it currently is. I would hate for child porn people to be able to get away with it just because of bitlocker =(


We all would hate for criminals to go free. But some of us would hate EVEN MORE for the state to have the power to make sure everyone they prosecute is convicted, whether they're guilty or not. Just like we'd all hate for another terrorist to hijack a plane in the US, but I think most of us would be willing to take the risk if it means our kids won't be groped by TSA employees.


RE: Send the wrong message?
By Ammohunt on 1/24/2012 1:55:47 PM , Rating: 2
That’s not entirely correct the Federal Government has the power to suspend your constitutional rights on a whim and does! Ask anyone that has had any dealings with government entities such as the Secret Service. This means that they can detail you till you die of old age for pretty much any reason.


RE: Send the wrong message?
By Just Tom on 1/24/2012 2:44:49 PM , Rating: 2
quote:
That, too, is illegal. They can't incarcerate you indefinitely until you give them what they want, they would have to levy multiple contempt orders against you


Not quite. Read up on H. Beatty Chadwick, who was imprisoned for 14 years on a single count of contempt of court. There are very few rules on judicial use of contempt of court, and in civil contempt cases - basically any attempt to coerce a witness to cooperate - there is no need for criminal trial. Judges have incredible leeway here.


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 5:01:08 PM , Rating: 2
Wow. What an injustice. More and more I'm encouraged to leave for Canada.


RE: Send the wrong message?
By mcnabney on 1/24/2012 10:03:58 PM , Rating: 3
Hey doofus, the Canadian government has more power than the US government. Canadians only have a right to silence.

And you better not go to Europe. Some of those nations don't even provide an assumption of innocence.


RE: Send the wrong message?
By myhipsi on 1/25/2012 10:10:17 AM , Rating: 2
The right to silence, which includes the right to not be compelled to be a witness against ones self. It is effectively identical to the 5th amendment in the U.S.


RE: Send the wrong message?
By YashBudini on 1/25/2012 2:20:48 PM , Rating: 1
She's guilty of hindering prosecution. People who have been silent that aided and abetted criminals have also broken the law. They already have the contents ergo the evidence, they're simple demanding for interpretation of what they have.


RE: Send the wrong message?
By akse on 1/25/2012 1:24:05 PM , Rating: 3
Next time she should use TrueCrypt's feature where you can hide another encrypted partition inside an encrypted partition.. put all sensitive data in there and when you decrypt the partition depending on the password it will choose which partition to open :) Give the other password which unlocks only the random files that are not sensitive.

Also you could encrypt the whole disk and make the boot screen not even show up so it could be hard to tell if there is actually an OS even installed on the disk :) Its a nice piece of software.. I don't really use it anywhere but for some work stuff.


RE: Send the wrong message?
By icemansims on 1/24/2012 10:13:00 AM , Rating: 2
Of course they would. And they should. The way our court system works, the PROSECUTION is required to provide the defense all information they have, it's called discovery. This is not necessarily true in reverse. The theory behind this is that people are allowed to provide themselves the best defense possible, and that if they're guilty, the truth will win out.
By this same token, if this judgement stands, and it won't, people could be required to provide all kinds of information that is self-incriminating.


RE: Send the wrong message?
By MozeeToby on 1/24/2012 11:09:57 AM , Rating: 2
This isn't providing information, it's providing evidence. It's the same way that if you accused of committing a crime with a gun you can get subpoenaed to turn over a weapon you own for analysis. If I had a physical lock box set to self destruct if someone tried to open it with the wrong key, they could subpoena me for the key and if I failed to provide it I would be held in contempt or charged with obstruction, regardless of how incriminating the contents of the box are.

The only real question mark here, is what happens when the accused legitimately does not know the key. Some people use encryption as a way of wiping a drive, where the key is never displayed, and certainly never recorded by the user. Some people just plain forget passwords. And of course, there's always hidden volumes and other cypto tricks to worry about, but a detailed analysis can often times detect that kind of thing.


RE: Send the wrong message?
By icemansims on 1/24/2012 11:32:41 AM , Rating: 2
No...not at all. They HAVE the laptop. They want the information on the laptop. It's closer to saying, "We know you have a foreign bank account. We want you to get your transaction list from your bank (where we don't have jurisdiction) to prove you were dumping illegal funds into it."
The prosecution can subpoena things (confiscate the laptop), but they can't force the accused to DO something (decrypt the laptop) to incriminate themselves.
It's self incrimination and it's unconstitutional.


RE: Send the wrong message?
By 3DoubleD on 1/24/2012 12:02:49 PM , Rating: 2
That falls into the same "opening the gun locker" argument. The courts can issue a warrant to search your private property if they have probable cause. Requiring that the locker be decrypted by the defendent is no different as requiring the defendent to search their home. Your constitutional rights are protected by probable cause in order to get that warrant(so long as the government stops trying to do away with that one). Therefore they have to prove there is reason to believe you have commited a crime and what they expect to find upon the search. In this case they certainly have both.


RE: Send the wrong message?
By adiposity on 1/24/2012 1:45:18 PM , Rating: 2
I disagree, it is different, because a lock combination is protected under the 5th amendment, as ruled by the Supreme Court. This is quite a bit like a lock combination, as it is information in the mind of the defendant.

Now, since they have a warrant to the laptop, they may feel they are not getting access to what the court ruled they have access to. In which case, they are free to take more brute strength means to access said laptop. If you need a defendant's help to convict them, then in my mind that falls within the 5th amendment.


RE: Send the wrong message?
By Solandri on 1/24/2012 2:23:32 PM , Rating: 2
quote:
I disagree, it is different, because a lock combination is protected under the 5th amendment, as ruled by the Supreme Court.

Do you have a citation for this? This closest I was able to find was:
http://laws.lp.findlaw.com/getcase/US/487/201.html

In it, the opinion that the lock combination is protected by the 5th Amendment is not a majority opinion ruling. It is a dissent by a single Justice (Stevens).


RE: Send the wrong message?
By adiposity on 1/24/2012 4:07:11 PM , Rating: 2
In that decision, they stated that they did not disagree with Steven's dissent on the point of combination safes. They simply disagreed that the combination safe analogy was apt in the case of turning over bank records.

Also see here: http://blogs.denverpost.com/crime/2012/01/05/why-c...

So basically, while not legally binding, the Supreme Court have essentially implied that turning over a lock combination is protected by the 5th amendment.

Another issue is, if someone gives up their encryption key, they are admitting "ownership" of the encrypted (and potentially illegal) contents. The admission then could be used against them. So the very act of showing the ability to decrypt the drive is actually providing evidence against yourself.

This is why you should use an encryption scheme where different passwords decrypt different things, and it is impossible to prove what is encrypted and what is not. Then if you are forced to decrypt your drive, you give the "lame" key, they can't prove there's another key.


RE: Send the wrong message?
By YashBudini on 1/25/2012 4:16:35 PM , Rating: 2
quote:
, if someone gives up their encryption key, they are admitting "ownership" of the encrypted (and potentially illegal) contents. The admission then could be used against them.

That would be the fine line between saying "I don't know the combination" or saying "I won't give it to you."


RE: Send the wrong message?
By JediJeb on 1/25/2012 6:34:32 PM , Rating: 2
quote:
they can't prove there's another key.


That's assuming a good digital forensics expert can not determine what scheme you are using to hide all the data. If they are able to piece together data from a smashed hard drive I imagine they can also determine what kind of encryption you are using even though they may not be able to easily decrypt it.


RE: Send the wrong message?
By MrBlastman on 1/24/2012 11:55:01 AM , Rating: 2
But it is providing information. It is providing information that can incriminate her.

What if say a few hundred years from now, instead of pulling data off of a computer, they instead strap the defendant to a gurney and wheel them off to a room with all sorts of obtuse sensors and electronics--to instead pilfer information from their own brains? Sure, that is right out of science fiction but it is entirely plausible if we are to allow this course to play out.

What I see here is a dangerous precedent with a finely balanced sword hanging over it. On one side, the argument can be made that the laptop is property, like a house and as such is subject to a warrant. In cases of a warrant and a search, if the defendant does not give the police a key, they can instead bust down the door. In this case, if the woman doesn't want to give them the password, they have the same option--to forcibly decrypt the laptop.

Except they can't. It will take decades to do so--far more than the statute of limitations might allow since this is not a capital crime.

If I were her lawyer, I'd simply, plainly and obtusely hint to her to "forget" the password. Whoops. They can't prove that she did or didn't, either.

But back to that fine-edged sword. On one hand, it can be looked at as a home--just another piece of property. On the other though, it can be looked at as words out of their mouth or a form of self-incrimination. But wait... lets think about this for a moment. Logically speaking, no, the laptop is not self incrimination. However, her speaking the password... IS .

So there we have it--the solution. She should not plead the fifth on decrypting her laptop but instead of simply relinquishing the password. If she were to give it up, they'd be able to bust her.

But wait--the sword swings back our way again. The password is simply akin to a key.

This is complicated. It isn't cut and dry and I don't expect this one ruling by the judge to stand forever. She should just "forget" the password. How can you be charged with obstruction if you truly don't know it?

They can't read her mind... yet. When, sometime in the future our minds can be read... this, the thought of it, sends tremors throughout my body just thinking of it. There are some truly fanatical extremists out there that will argue sometime in the future that even our own bodies are not "personal" property but instead the whim of our society.


RE: Send the wrong message?
By drycrust3 on 1/24/2012 7:07:29 PM , Rating: 1
quote:
Except they can't. It will take decades to do so--far more than the statute of limitations might allow since this is not a capital crime.

The Enigma code was cracked on a daily basis by knowing what part of the encrypted message was and where it appears in the message. My guess is the HDD could be decrypted the same way: by knowing what part of the encrypted data relates to some standard file. While I wouldn't say its a piece of cake to decrypt, I think with the right expertise and approach it could be done in less time than "decades".


RE: Send the wrong message?
By Master Kenobi (blog) on 1/24/2012 10:15:06 PM , Rating: 2
Computer Encryption and the Enigma code which was a cypher have really no relation to each other. I would not recommend comparing the two. Still, I'd be curious which encryption software she used because most of the ones on the market can be broken without too much trouble. To add insult to injury, if she encrypted it recently then the residual files will be all over the drive still in an unencrypted state and you merely need to exercise basic forensics to recover plenty of them. This really smacks of the government being lazy.


RE: Send the wrong message?
By YashBudini on 1/25/2012 2:33:59 PM , Rating: 2
quote:
This really smacks of the government being lazy.

More likely it's about showing her who's boss.

It will get more interesting if others are involved, is she hiding a conspiracy?


RE: Send the wrong message?
By JediJeb on 1/25/2012 6:41:00 PM , Rating: 2
Lazy or cheap since the really high end data recovery processes are super expensive. Some of these companies can actually piece together a broken platter and retrieve at least partial data from it, though you pay quite a bit for that service.


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 10:13:50 AM , Rating: 3
Apparently you are unaware of the 5th Amendment. You should read it. It will help you understand the right that you have not to incriminate yourself. Everyone, whether they have committed a crime or not, has that right.


RE: Send the wrong message?
By kattanna on 1/24/2012 10:20:39 AM , Rating: 3
but apparently not in that courtroom


RE: Send the wrong message?
By sigmatau on 1/24/2012 10:43:15 AM , Rating: 2
Apparently you need to read it. This is not a 5th Amendment case. Not even close. Imagine you have a safe that is really robust and hard to crack and the judge orders you to open it instead of them going through the process of cracking it. Same exact deal here. You can't hide your crimes behind a password. That is nonesense. The data is on the hard drive. The judge just asked to released the information on the hard drive. That cannot be denied using the 5th Amendment.


RE: Send the wrong message?
By Ticholo on 1/24/2012 11:09:37 AM , Rating: 2
So, there's no way they can get inside my brain and poke around for incriminating information. If a judge "asks me to release that information", it's the same thing, right?
This isn't a problem of accessibility.
A safe contains things that can be mentioned on a warrant that gives officers the right to seize it and open it, or ask me to do so. A hard-drive contains information. You can seize the hard-drive and if you can read it, that information is yours. If you can't, is it so clear that the defendant is obliged to give you access?
If he opened a safe and you found encrypted pages, should the defendant have to give up the code? (These things might/must have already happened before, so maybe there's some form of precedent)


RE: Send the wrong message?
By fic2 on 1/24/2012 12:00:24 PM , Rating: 3
The Denver Post had a story about this:
http://www.denverpost.com/search/ci_19669803

quote:
The debate, then, is about which pre-decided scenario this new situation fits into. Is a computer password like a key to a lockbox, as the government argues? Or is it akin to a combination to a safe, as Fricosu's attorneys say?
While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the "expression of the contents of an individual's mind" — is.


RE: Send the wrong message?
By 3minence on 1/24/2012 12:52:47 PM , Rating: 3
If the litmus test is what your link describes it is then she won't have to open it. A password is exactly akin to a combination, an "expression of the contents of an individual's mind", and therefore protected under the 5th.

I don't know if I agree with it, but if that's the test, she passes.

Once computers become smart enough and passwords become verbal, the 5th will be even more applicable. Its not only the words I say but also the way I say them. Definitely an "expression of the contents of an individual's mind".


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 1:13:05 PM , Rating: 3
That is the case because she needs to VERBALLY tell them what the password is. If it were merely a key, such as a USB drive, etc then that's NOT protected by the 5th Amendment. But if you have to VERBALLY give a password then that is using your knowledge to self incriminate. That's protected under the 5th Amendment.

Not sure if you understand Miranda rights either? Anything you say can and WILL be used against you.

Because of both, you have the right to completely remain silent and the burden of proof is upon the DA.


RE: Send the wrong message?
By tayb on 1/24/2012 4:11:18 PM , Rating: 2
It depends on how the safe is locked. If it is locked via a key they can get the key and force you to open it. If it is locked via a combination lock they CANNOT force you to provide the combination. This precedent has already been set.

I don't see how one could possibly correlate a password to anything but a combination lock. There is no physical key. It's an act of the mind.


RE: Send the wrong message?
By mattclary on 1/24/2012 10:39:41 AM , Rating: 2
I'm pretty sure Bill Clinton would have said something along the lines of, "I don't recall".


RE: Send the wrong message?
By bigdawg1988 on 1/24/2012 12:02:31 PM , Rating: 2
That was Reagan.
Clinton SHOULD have said it!


RE: Send the wrong message?
By TheChaosMachine on 1/24/2012 2:26:28 PM , Rating: 2
Almost, same era wrong guy. It was Oliver (Ollie) North, and "I don't recall, consul".


RE: Send the wrong message?
By mattclary on 1/24/2012 2:38:33 PM , Rating: 2
RE: Send the wrong message?
By Flunk on 1/24/2012 12:16:01 PM , Rating: 2
I forget passwords all the time, especially when it's convenient to me.


RE: Send the wrong message?
By DFSolley on 1/24/2012 11:44:26 AM , Rating: 3
If the information was encrypted by hand with some form of code language that only the defendant new, could the judge demand that the accused interpret it? Current precedent would say no.

But since this is new technology, the authoritarians want to revisit those precedents and force defendants to provide evidence against themselves.


RE: Send the wrong message?
By talikarni on 1/24/2012 2:44:09 PM , Rating: 2
So what happens when opposing a government official such as speaking bad about the President becomes illegal? Using illegal methods to force people to do something against the very Constitution is a slippery slope taking us from having rights to having NO rights. By them forcing her to do this, they are going against the very foundation of this country. Colorado Federal courts tend to lean to the liberal Democrats way of thinking so as far as they are concerned, the lady is a convict and gave up her rights, despite the trial going on. This is NOT Cardassia and we have due process here.
5th Amendment protect people from self incrimination and therefore this lady has every right to deny the request, regardless of the charges against her.

quote:
I'm normally all for privacy, but in a situation like this, where there is probable cause to believe she commited a crime, if a judge orders the person to give up the password, I am all for it. Otherwise this becomes a massive hole criminals can hide in. Of course almost all criminals will simply "forget" the password.


RE: Send the wrong message?
By Reclaimer77 on 1/24/2012 5:55:42 PM , Rating: 2
quote:
I'm normally all for privacy, but in a situation like this, where there is probable cause to believe she commited a crime, if a judge orders the person to give up the password, I am all for it. Otherwise this becomes a massive hole criminals can hide in.


If there was probable cause, they could build a case without the data on the drive. The fact that they cant, tells us this is a fishing expedition. There is absolutely NO legal responsibility on her part to allow her privacy and rights to be violated, willingly, so they can attempt to build a case against her.

She is literally being forced to self-incriminate herself. Something that is against the law. The Fifth Amendment is CRYSTAL clear on this.

quote:
if a judge orders the person to give up the password, I am all for it.


Well you can burn in hell along with this judge then. Yes, maybe some criminals WILL get by because of this. So what? At the risk of shattering our Fifth Amendment rights, you think that's too high a price to pay?


"If they're going to pirate somebody, we want it to be us rather than somebody else." -- Microsoft Business Group President Jeff Raikes














botimage
Copyright 2014 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki