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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



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Send the wrong message?
By jonmcc33 on 1/24/2012 10:00:04 AM , Rating: 5
It sends the RIGHT message! That we have a RIGHT to privacy given all the governments efforts to take that AWAY from the American people. The Patriot Act, National Defense Authorization Act, SOPA, PIPA...on and on.

I highly encourage EVERYONE to use TrueCrypt to encrypt your hard drives! It protects your PERSONAL privacy that you have a right to.




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?


RE: Send the wrong message?
By mattclary on 1/24/2012 10:38:30 AM , Rating: 5
I am a huge advocate of privacy and limiting government's reach, but... She is not being asked to testify about herself, she is being compelled to provide evidence.

Think about it this way, if the cops have a search warrant for your house, you can not use the 5th amendment to protect the bodies in your cellar from incriminating you.


RE: Send the wrong message?
By Ticholo on 1/24/2012 11:11:46 AM , Rating: 2
But the warrant can't force you to dig the bodies up and display them in your porch. If the officers find them, yay for them. If not, you're free to kill again.


RE: Send the wrong message?
By MrBlastman on 1/24/2012 11:57:14 AM , Rating: 2
Well, not quite. They can still take you to trial on circumstantial evidence and if a jury is dense enough to convict you on those grounds you can still go to jail. The dilemma for yourself and those entombed bodies is--do they have enough evidence without them to get a conviction?


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 1:17:15 PM , Rating: 2
Unless your name is Casey Anthony.


RE: Send the wrong message?
By YashBudini on 1/25/2012 2:37:06 PM , Rating: 2
quote:
But the warrant can't force you to dig the bodies up and display them in your porch. If the officers find them, yay for them. If not, you're free to kill again.


The police have found them, they're simply asking for the key to the vault. If no evidence is present she goes free.


RE: Send the wrong message?
By Etsp on 1/24/2012 11:13:41 AM , Rating: 2
This is more akin to a Judge ordering someone to act as a tour guide and point out exactly where the bodies are (in your example), or hold them in contempt of court until they do.

The authorities are allowed to search for them on their own (with a warrant and due process), that has nothing to do with the fifth amendment. They are more than welcome to attempt to decrypt the hard-drive themselves.

The fifth amendment is about not being forced to do something that could incriminate you to the crime you are accused of, through speech or other means. Providing the password to decrypt a hard-drive falls under this protection.


RE: Send the wrong message?
By mattclary on 1/24/2012 2:46:09 PM , Rating: 2
Just as providing them a key to your house would do the same.


RE: Send the wrong message?
By Reclaimer77 on 1/24/2012 6:04:08 PM , Rating: 1
quote:
She is not being asked to testify about herself, she is being compelled to provide evidence.


Were you in the Nazi SS or something? Maybe you should read the Fifth Amendment again. Oh sorry did I say again? Nevermind, I mean just go read it for the first time. You can't be forced to provide evidence that is going to be used against you. It's Unconstitutional, and the judge is wrong. This should go all the way to the Supreme Court where it will be overturned. It's a terrible decision that could lead to a horrible legal precedence.

You know as a Conservative I can't believe I'm hearing myself say this, but I'm honestly getting really tired of all these lower courts totally fucking up and making bad decisions like this, that end up having to be heard by the Supreme Court and corrected 10+ years later.


No explanation?
By bug77 on 1/24/2012 10:18:21 AM , Rating: 2
quote:
I conclude that the Fifth Amendment is not implicated by requiring production of unencrypted contents of the Toshiba Satellite M305 laptop computer


Nice for him to conclude that, but how did he arrive at this conclusion?




RE: No explanation?
By jonmcc33 on 1/24/2012 10:33:40 AM , Rating: 4
Because that's his legal interpretation. Every judge is that way. The law exists but it is there for interpretation when not specifically defined. This type of case will need escalation to the US Supreme Court.


RE: No explanation?
By sigmatau on 1/24/12, Rating: -1
RE: No explanation?
By fic2 on 1/24/2012 12:04:46 PM , Rating: 2
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


What if the hard drive is full of pictures of puppies and kittens?


RE: No explanation?
By MrBlastman on 1/24/2012 12:23:30 PM , Rating: 3
Exactly. What if they didn't?

Women were burned at the stake is Salem, Massachusettes because people assumed they were witches without any proof.

Fear can not be allowed to override the balanced system of justice. The rule of law must be kept level. Innocent until proven guilty should always be a guiding mantra for our courts.

Just because someone has shifty eyes, a pot belly and grubby, undersized hands doesn't mean they are automatically a pedo. I think they're filth just as much as the rest of society but you get the idea. This concept can apply to any type of criminal.

*gasp* What if they are a controversial author or scientist that wrote somewhere the Earth orbits the Sun instead of the other way around?

Ostracization is easy to justify under the guise of context, yet easy to be condemned under the same, indentical means.


RE: No explanation?
By TSS on 1/25/2012 7:50:30 PM , Rating: 2
quote:
shifty eyes, a pot belly and grubby, undersized hands doesn't mean they are automatically a pedo. I think they're filth just as much as the rest of society but you get the idea.


That's prejudice and it's very dangerous. Not so much in the way that you mean, but it allows for the other extreme as well, that you're more trusting of people who look better.

Speaking of dutch courts and pedo's we've had lots of cases lately in the news about swimming instructors and day care people molesting children, and some big cases too. One even had a huge number of mentally handicapped children molested.

Point is people won't trust a person who looks as you're describing with their kids. I doubt anybody who looks like that works in a day care center or as swimming instructor. It's the ones that look normal who are the real danger.

Ideally, you should approach everyone with equal caution. There are exceptions on both sides of course, but when concirned with strangers that should be the general rule. It doesn't mean everybody's supposed to be a pedo. Doesn't mean everybody gets trust automatically either. It's something you earn, and very slowly. Nobody's not worthy of not being able to earn my trust, not even a pot belly, grubby with small hands looking guy. But he'll have to work for it, and it's certainly not going to start off big like letting him take care of my kids. And that goes for everybody.


RE: No explanation?
By Fritzr on 1/24/2012 6:35:55 PM , Rating: 2
IF the hard drive is full of child porn AND the defendant is required to display the contents THEN it is a clear case of self-incrimination.

IF the hard drive is full of puppies and kittens AND the defendant refuses to display the contents THEN it is assumed that the disk will incriminate.

If the defendant is required to hand over the laptop for the purpose of having it searched, that is permissible. It is now up to the court to conduct the search :D Further assistance in accessing the information, other than surrendering other objects needed for access, would be self-incrimination by providing testimony used for the purpose of obtaining a conviction.

The court does have the option of cloning the drive and using a supercomputer to decrypt the contents if they really need the laptop information for a conviction. The defendant can not be required (legally) to provide testimony that will assist their conviction. This assistance is requested routinely though and is occasionaly backed up by contempt of court proceedings.

The lay assumption is that if the defendant refuses to display their photos of cute little puppies and ktittens, they are admitting to be guilty of the crime they are accused of.

That may be true. But there could be other reasons. The defendant may be completely innocent of the child porn charge that is being used to justify the search and simply protecting the photos that would prove he is the serial killer the police are still searching for. This would then definitely be a 5th amendment case :P


RE: No explanation?
By YashBudini on 1/25/2012 2:29:13 PM , Rating: 2
Try driving drunk and saying you won't take a breathalyzer test based on the 5th Amendment. Watch what happens.


RE: No explanation?
By bigdawg1988 on 1/24/2012 12:16:03 PM , Rating: 2
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?

Exactly!!! Would +1 you if I could.


RE: No explanation?
By Camikazi on 1/24/2012 4:40:54 PM , Rating: 2
Actually yes, unless they can break the encryption themselves they should not be allowed to force anyone to do it for them. They have the laptop they can do whatever they want with it, if they can open it good for them they got evidence (if there is any) if they can't then it is not admissible. It's not the defendants job to find the evidence for them.


RE: No explanation?
By Gondor on 1/24/2012 12:26:43 PM , Rating: 1
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


If that hard drive is full of something illegal, it is up to investigators to prove it. Pony up the evidence and go to court, not the other way around.

It is most certainly not up to the person incriminated to provide evidence for the prosecution against him/herself.


RE: No explanation?
By bug77 on 1/24/2012 12:57:38 PM , Rating: 2
quote:
What if the person in question had a hard drive full of child porn?


I believe that exactly what the fifth amendment is for.
I don't think it says: "you have the right not to incriminate yourself, but only when there is nothing to incriminate you in the first place." Yes, it may mean this person may walk away, but it also means no one will ever have the power to force me let them look at my computer and be able just say "oh, sorry, nothing to see here" afterwards.


RE: No explanation?
By jonmcc33 on 1/24/2012 1:21:21 PM , Rating: 2
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


I'm no expert but I'd say "yes". If that hard drive is encrypted and the DA has nothing other than that then they are completely protected.

But if you are dumb enough to do child porn then I doubt you'll be smart enough to encrypt your hard drive.

In this BANK FRAUD case I do believe someone that commits a crime like that is intelligent enough to cover their tracks by encrypting their data.


RE: No explanation?
By JediJeb on 1/25/2012 6:58:18 PM , Rating: 1
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


With the 5th Amendment they should be. But if you are suspicious they are dealing in child porn, then you should be able to gather other evidence if you are a good investigator because there should be a trail to how the porn got onto the hard drive in the first place. The 5th Amendment is there to keep a person from incriminating themselves, but it does not prevent investigators from discovering the evidence by other means.


RE: No explanation?
By mattclary on 1/24/2012 10:43:55 AM , Rating: 3
You can not use the 5th amendment to avoid getting your house searched. Just because the key is in your head does not make this any different.


RE: No explanation?
By MrBlastman on 1/24/2012 12:43:36 PM , Rating: 2
Yes but they can't search your head... yet. :-|

http://www.law.cornell.edu/supremecourt/text/487/2...

Read.

I quote:

quote:
... He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed


That's the Supreme Court there.


RE: No explanation?
By YashBudini on 1/25/2012 4:05:37 PM , Rating: 2
That's fine they've basically already decided.

Plenty of people convicted on just very damming circumstantial evidence.


RE: No explanation?
By Camikazi on 1/24/2012 5:01:44 PM , Rating: 2
A key is a physical object, they can and will get access to that, but a password or a combination is NOT physical, it is in your mind and your mind and all thoughts are private and not something they can force you to give away.


I'm sorry...
By mkrech on 1/24/2012 10:40:15 AM , Rating: 3
...I can't seem to remember that password. Let me try one more time. Uh... I'm sorry, I forgot that I built a fail safe drive wipe into the system to automatically wipe the drive after 3 failed log-in attempts. Oops, my bad.

Or better yet, create a user account that has a log-in script that automatically multi-pass wipes any data you want protected when you use that user account.

There are plenty of options for truly protecting your data.

Still, I don't like the slippery slope this legal precedence creates.




RE: I'm sorry...
By ketchup79 on 1/24/2012 10:45:39 AM , Rating: 3
Exactly, this is a slippery slope. I want freedom to win, even if this woman cannot be convicted to the full extent possible. And this is noting new. Look at airport security. Our freedom is slipping away to the hands of security. I am not surprised by this news, but disappointed. This woman should stand for her rights and take a contempt charge.


RE: I'm sorry...
By MrBlastman on 1/24/2012 12:25:18 PM , Rating: 2
The only people rating you down are those who embrace a police state and fear nothing of government control.


RE: I'm sorry...
By mattclary on 1/24/2012 10:45:42 AM , Rating: 2
"I'll tell you what. We will give you some quality alone time in jail so you can try to remember it."


RE: I'm sorry...
By corduroygt on 1/24/2012 10:55:03 AM , Rating: 3
Until when? How do you prove if she really can't remember it or lying?

This is an interesting case for sure.


RE: I'm sorry...
By fic2 on 1/24/2012 12:27:35 PM , Rating: 2
I was wondering if some of the encryption software had a feature similar to what you suggest - wipe the hd starting with the encryption area if X number of incorrect password attempts or given. Or even have a special wipe password. Doesn't seem like it would be that difficult of feature to implement.


RE: I'm sorry...
By fic2 on 1/24/2012 12:32:40 PM , Rating: 2
If it isn't a feature now maybe it should be in light of some of the MPAA/RIAA lawsuits. Although don't hear too much about them now that they are on to the much bigger "shutdown the internet" SOPA.


RE: I'm sorry...
By mkrech on 1/24/2012 5:25:44 PM , Rating: 2
I do not know if it is a feature of any off the shelf apps currently available. However, it is a simple enough task to implement with some simple scripts and dedicated user account just for wiping that sensitive data when the judge demands it.

Since none of this applies to me I will offer a scenario. I would suggest making a secondary account on the device. Call it JIC (just in case) for example and create start-up scripts to silently run secure wipes of all the data you want destroyed. Then have it delete the JIC user and re-authenticate to your regular user. Run it on a SSD drive to help mask drive activity and speed up the process.

This method would not be immune from discovery, but if you deploy it properly you can give the impression that you have nothing to hide and avoid detailed inspection and likely avoid detection.

More social engineering then technical design.


RE: I'm sorry...
By jonmcc33 on 1/24/2012 1:24:18 PM , Rating: 2
TrueCrypt is capable of multi-pass wipes. It would be a nice option if there was a fail safe for multiple failures to initiate a full volume wipe.


RE: I'm sorry...
By UnauthorisedAccess on 1/24/2012 7:49:38 PM , Rating: 2
TrueCrypt enhancement request: One password to access your encrypted hard drive plus special datafolder. One password to access your encrypted hard drive minus special datafolder.

Problem solved - ignoring caching/indexing/history features of an OS that may point to the missing files.


the fifth HAH!
By Iketh on 1/25/2012 9:48:05 AM , Rating: 2
Her claiming the fifth on her laptop is the exact same as if she told the officers arriving at her house, "Sorry, you cannot enter. I plead the fifth."

It is a good try though, I'll admit.




RE: the fifth HAH!
By reddog007 on 1/25/2012 10:51:04 AM , Rating: 2
Might want to get updated on how the law works?


RE: the fifth HAH!
By Iketh on 1/25/2012 2:56:55 PM , Rating: 2
Do you know what a warrant is?


RE: the fifth HAH!
By YashBudini on 1/25/2012 3:12:47 PM , Rating: 2
A valid warrant is how they obtained the laptop in the first place. IE they already have the evidence.


RE: the fifth HAH!
By Iketh on 1/27/2012 12:41:14 AM , Rating: 2
What does that have anything to do with this thread?


RE: the fifth HAH!
By Camikazi on 1/25/2012 3:50:30 PM , Rating: 2
The warrant forced her to give up her laptop, it says nothing about her opening it and showing them what's inside, that is their job to do.


RE: the fifth HAH!
By Iketh on 1/27/2012 12:39:34 AM , Rating: 2
What's the point of obtaining the laptop if it's impossible to get inside it? Again read my original post.


Like a lock in the real world?
By twhittet on 1/24/2012 10:25:04 AM , Rating: 2
If I had a house, or a briefcase with evidence in it, and it was locked, I would assume a judge could order me to open it (as long as they had a warrant).

I also assume if I refused, the judge could hold me in contempt or some other lesser charge.

The problem here is that typically locks can be broken, and houses, briefcases, safes, etc. cracked. If encryption is uncrackable, do they keep the same lesser punishment? Or does the punishment go up?

I do think she could be held in contempt or something similar in this case, but, under our current laws, see no reason for her to be held on any higher charge that would lead to any significant jailtime.




RE: Like a lock in the real world?
By Flunk on 1/24/2012 12:19:42 PM , Rating: 2
It's not uncrackable, it's just a big pain to crack. Once law enforcement wises up to this they won't have a big problem. The only issue is paying for the huge supercomputer they'll need to do it.


RE: Like a lock in the real world?
By twhittet on 1/24/2012 1:47:54 PM , Rating: 2
Depending on the encryption. Then justice will become even more based on cost/benefit ratio. Plenty of money is already wasted/spent on chasing and prosecuting, and penalizing criminals for petty crimes.

There are also some encryptions that are nearly "uncrackable" for a number of years to come.


RE: Like a lock in the real world?
By Schrag4 on 1/24/2012 1:42:44 PM , Rating: 2
Yes, exactly like a lock in the real world. And just like a lock in the real world, this encryption can be broken (although it would take a long time). If someone was hiding bodies in a storage unit, the police wouldn't expect him to give up the key, they would simply break the lock if they had a warrant to search the unit. If they have a warrant to search the laptop, they should simply break the encryption. Why should it be up to the defendant to incriminate herself by letting them in?

Look, we all think she's probably guilty, but what if you were the defendant and you were innocent? If your answer is "...then I'd have nothing to hide..." then you fail. I'm not saying you should never give up info as an innocent suspect, as sometimes info you provide early on can incriminate the true criminal or exhonerate you in some other way. I'm just saying you shouldn't have to, because you never know how that info will be misconstrued to work against you. That's kinda the whole point here...


By YashBudini on 1/25/2012 3:59:22 PM , Rating: 2
quote:
The problem here is that typically locks can be broken, and houses, briefcases, safes, etc. cracked.

Suppose we stayed in the real world. Your residence is a building that used to be a bank, with a safe the size of a walk in closet. They have a warrant and you don't provide the physical key. What happens? You plead the 5th? Now suppose the lock is a combination lock, what happens then?


still wrong
By Visual on 1/25/2012 3:15:50 AM , Rating: 3
Bank fraud or mass murderer, I don't care, she shouldn't have to decrypt it.
There should be plenty enough evidence for her crime on bank computers if she commited the fraud electronically, and if not then it is even more absurd to require her to decrypt her info.
If they don't have enough evidence through the bank's security system, then they are suing the wrong person. They should sue the manager that decided to skimp on IT security expenses in favor of their own ridiculous paycheck.




RE: still wrong
By Forsaken503 on 1/25/2012 7:15:48 AM , Rating: 2
So say the cops find someone at the scene of a murder, covered in the victims blood, with a security camera of someone (can't see the face) stabbing the victim. This someone is read the miranda rights (Anything you say can and will be used against you), and then brought into custody. While on the phone this person admits to their spouse that the knife is in a safe in their car that is rigged to destroy everything inside if someone screws with the safe. Does a judge have a right to ask her for the combination since he already knows that there is a murder weapon in the safe? Under current law, including the 5th amendment, they do and it's not violating any rights because she WILLINGLY offered the information about what is in the safe.


5th Amendment
By DaveLessnau on 1/24/2012 10:54:13 AM , Rating: 2
quote:
Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

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.


I don't know. But, forcing people to decrypt their own data sure sounds like compelling them to be a witness against themselves to me (IANAL).




RE: 5th Amendment
By HrilL on 1/24/2012 11:51:55 AM , Rating: 2
I completely agree. I'd take a contempt charge if the judge tried to force me to decrypt the drive. Then sue them for violating my 5th amendment right by charging me with contempt.


Same as the UK then.
By Ph0b0s on 1/24/2012 3:39:26 PM , Rating: 2
So you guy's have just had your first taste of what we have had in the UK for a while under the RIPA legislation.
http://en.wikipedia.org/wiki/Key_disclosure_law#Un...

You guy's are lucky though as in the UK I don't believe they need to show probable cause, for getting you to decrypt the info. Just encryption existing is enough evidence for them to compel you to decrypt it on pain of prison.




RE: Same as the UK then.
By YashBudini on 1/25/2012 4:10:19 PM , Rating: 2
quote:
Failure to disclose carries a maximum penalty of two years in jail.

A slap on the wrist compared to being convicted of child port and labeled a sex offender.

quote:
Just encryption existing is enough evidence for them to compel you to decrypt it on pain of prison.

Perhaps for an individual but companies have legit financial reasons to encrypt.


Brute-force the PW?
By edge929 on 1/24/2012 5:28:50 PM , Rating: 2
It's been awhile since I've played with password hacking but couldn't a modern CPU brute-force the password in a week or less assuming the encryption software does not have an attempt limit? I had a college professor who stored all his answers in an Access database (I know, right) AND it was on the public network. I got curious one day, copied it and with the help of some software, brute-forced his 8-character password in less than an hour on a Pentium III 450mhz. Ace'd that class...

With that said, I'm sure the encryption software has a very limited number of attempts (3?) before a time-out kicks in (or some other measure).




RE: Brute-force the PW?
By reddog007 on 1/25/2012 10:48:11 AM , Rating: 2
It depends on the password and encryption program used. If it is AES based like TrueCrypt, the feds can't even crack it. It can take billions of years to crack a password even using a supercomputer if you are using AES encryption. Even AES 128-bit.

Though if older, lower and/or weaker levels are used, and depending on the hardware it can take hours, days, weeks, months, years.

You'd figure they have already sent this laptop off to be decrypted, and the guys at computer forensics went, "you're sh/t out of luck."


Not a violation of the 5th
By Forsaken503 on 1/24/2012 10:13:45 PM , Rating: 2
If you read the court document you would see that through a recorded phone conversation with her ex husband she has already admitted to being the owner of the laptop and the laptop having been used in the crime and information is still on the computer. If it were not for this then the gov't would not be able to ask for it to be decrypted. Also, in the child porn case when he was asked for a password he was protected under the 5th amendment rights, however because a border agent had already seen the pictures without needing to enter a password and the scumbag had willingly provided access to them when asked by another agent, they knew there was evidence there so an order for the criminal to produce an unncrypted version of the documents was granted and complied with.

Also, In the court order it states that a mirror image was taken before even attempting to boot the system, so any attempt to wipe the disk would have failed. A better method would be to design a hard drive with a backup battery internal to it so that if it is disconnected it would wipe itself. Also, have an encrypted partition that has to be connected to a web server for authentication and decryption of the drive would also work, if any system unsuccessfully attempted to decrypt the drive, the AES key could be deleted off the web server rendering all drive mirrors completely useless.




RE: Not a violation of the 5th
By Steve1981 on 1/25/2012 8:08:44 AM , Rating: 2
quote:
If you read the court document you would see that through a recorded phone conversation with her ex husband she has already admitted to being the owner of the laptop and the laptop having been used in the crime and information is still on the computer. If it were not for this then the gov't would not be able to ask for it to be decrypted.


Curious, when I read the 5th amendment, I don't see the part "nor shall be compelled in any criminal case to be a witness against himself EXCEPT when we have a wiretapped phone conversation of you admitting that a critical piece of evidence is in an encrypted drive on your computer that only you know the password to".


Right decision
By Beenthere on 1/24/2012 11:01:49 PM , Rating: 2
As the court stated the fifth ammendment does not protect documents or other information, it only applies to answers given by the defendent to potentially incriminating questions in a court proceeding.




RE: Right decision
By hellokeith on 1/25/2012 12:36:35 AM , Rating: 2
Wiretapped conversation: "We killed him and hid his body in the blue boneyard."

Prosecutor to Defendant: "What and where is the blue boneyard?"

I don't see how one can be forced to provide incriminating evidence, regardless of recorded conversations the police may already have.

They have her admitting the laptop was used in a crime. I think the prosecution is potentially risking a war instead of just winning the battle and going home.


Hi
By reddog007 on 1/25/2012 10:26:23 AM , Rating: 2
How long has this case been going on for? The prosecutors ask the judge 2 years later for the judge to force her to unlock her password?

2 years is a long time. You can even forget a basic password to any of your forums if you haven't gone there in 2 years. Say she claims to have used a 30 character password full of upper, lower, numbers and special characters. Simply can not just remember something like that after 2 years of never using it. Also, what if she kept it written down somewhere and it is a piece of evidence that the cops never picked up or tossed out thinking it was just garbage.

Seems like she can easily say "I forgot" or "you didn't pick up my password, I had to write it down to remember it"




RE: Hi
By reddog007 on 1/25/2012 10:38:20 AM , Rating: 2
Even if she did unlock it, with a program like TrueCrypt, you still have plausible deniability if you opt to use this portion of the program. Hidden Volume and Hidden OS.
http://www.truecrypt.org/docs/

Just because she says no doesn't mean sh/t. If you a cop were to come to your house right now to search it, what would you say? I'd say no as I hope everyone else would. Does that make me a bad guy? Nope!

She says no, then has truecrypt, with the extra layers of protection, cops are still going to be stumped and pissed off at her. Plus if she knows she is the wrong, and they may or may not find what they are looking for, this does at least buy her freedom until they do get her in jail, if they can.


Dead...
By mmatis on 1/24/2012 10:19:21 AM , Rating: 1
pigs. Coming REAL soon.




RE: Dead...
By sigmatau on 1/24/2012 10:53:04 AM , Rating: 2
3% of pigs arrive at the slaughter house in a non-ambulatory state. This information is directly from that industry.


5th ammendment
By bebimbap on 1/24/2012 11:39:27 AM , Rating: 1
The common denominator here is, IF there is hard evidence you did something, and there is evidence you are trying to hide it, you can't.
IF she had committed this crime and kept everything in her head and not in the computer, the judge couldn't get her to admit to it because of the 5th.
But in reality she decided to bury her skeletons in her computer behind a locked door. It would be fine if there was no evidence linking the computer to her crimes.
I'm assuming there was evidence proving her computer was used in her crimes. Similar to saying if your house was used to smuggle illegal aliens and they had proof, they could raid your house with a court order.

So in the end,
No, the 5th doesn't protect you from your own stupidity for keeping a diary of your crimes in handwriting that isn't legible, and it definitely doesn't protect you from being proven guilty by such evidence.




RE: 5th ammendment
By Camikazi on 1/24/2012 5:12:22 PM , Rating: 2
Most likely then not they do not know if the laptop contains evidence or not, they are just hoping to get more evidence by checking her files on the computer. Basically their case won't stand on it's own ATM so they are hoping for more evidence. If they did keep files and evidence of their crime on the computer then they can use it BUT, they should not require them to hand them that evidence to them. The DA should be the one opening the laptop and getting the evidence not asking her to give them the evidence they need since that is self-incrimination and against the 5th :)


And...
By ballist1x on 1/24/2012 11:03:26 AM , Rating: 2
they must surely already have proof of this 'illegal' activity, enough to bring a court case without even knowing what proof is on the laptop anyway.

So why would they even need to decrypt it?

if they dont have enough proof and evidence then they shouldnt have taken it to court anyway.

But anyway, lets forget the digital aspect here. Imagine the police suspect someone has something illegal in a garage somewhere, but the garage is locked up, can they force the defendant to give the key to the lock? What if the key has been lost, or misplaced? Or simply thrown away?

What if the person can no longer remember how to decrypt the notebook, what if they forgot the password, or had it written down and can no longer recollect where they placed the key here?

I have no idea what happens in either of these cases but i doubt that in the garage instance that the defendent can be done for not supplying the key beyond what is found in the garage, and surely the same should happen for the digital scenario too.




And...
By ballist1x on 1/24/2012 11:03:44 AM , Rating: 2
they must surely already have proof of this 'illegal' activity, enough to bring a court case without even knowing what proof is on the laptop anyway.

So why would they even need to decrypt it?

if they dont have enough proof and evidence then they shouldnt have taken it to court anyway.

But anyway, lets forget the digital aspect here. Imagine the police suspect someone has something illegal in a garage somewhere, but the garage is locked up, can they force the defendant to give the key to the lock? What if the key has been lost, or misplaced? Or simply thrown away?

What if the person can no longer remember how to decrypt the notebook, what if they forgot the password, or had it written down and can no longer recollect where they placed the key here?

I have no idea what happens in either of these cases but i doubt that in the garage instance that the defendent can be done for not supplying the key beyond what is found in the garage, and surely the same should happen for the digital scenario too.




precedent already exists
By tayb on 1/24/2012 1:46:53 PM , Rating: 2
A computer is not akin to a lockbox that can be opened with a key. It is more similar to a combination box which requires an act of the mind. You can be forced to provide a PHYSICAL key to open a box but not an act of your mind. This encryption is protected by the 5the 5th amendment. The police have the laptop in their possession they may do with it what they please but they may not demand a password.

This will be appealed and this will be overturned.




Don't acknowledge ownership
By MegaHustler on 1/24/2012 2:40:10 PM , Rating: 2
Maybe a way around this issue?

Police: We found X in your house. Please open it up for us.
Me: What X? That X? I've never seen that X before.
Police: It has your fingerprints all over it.
Me: No, it _allegedly_ has my fingerprints all over it.
Police: It was on sitting right on your office desk, and it was still warm.
Me: So you say. I don't recall having seen it before.
Police: Here's a picture of you we found on facebook, holding and using X.
Me: I'll grant you it looks a bit like X, but it's not.
Police: Here's five signed and sworn affidavits from your best friends, stating they have personally seen you using X.
Me: They're mistaken.

Even if it gets ridiculous, you should be allowed to claim as your defence that X is not yours. Forcing you to reveal the password, forces you to acknowledge ownership/knowledge, thereby violating your right against self-incrimination.

?




Precedent is already set
By tayb on 1/24/2012 3:37:25 PM , Rating: 2
The judge is equating a password to a physical key to open a physical lock. This stance is understandable if you want a conviction but it will not hold up on appeal. A password is stored in the brain and requires an act of the mind to open. You cannot force an act of the mind. A password is accurately compared to a combination lock, which is protected by the 5th amendment.

The police have seized the laptop. All of the data is theirs. It is now their responsibility to unlock it just as it would be their responsibility to open a combination locked safe.




Shouldn't it also be considered?
By Nanobaud on 1/24/2012 6:50:45 PM , Rating: 2
What are they expecting to find on the hard drive? If they had a warrant to search your safe for a murder weapon, they could take the gun, but not the diary. Simply decryping the drive is not the act of providing evidence, you have to consider what evidence would be provided by doing that. If she used the computer as a tool to access and redirect money and there were evidence of that actual use, that would seem to be a valid subject of a warrant. If she was writing down her plan to break into the bank and physically steal money, not so much so. Courts are often not that tech savvy and allow the siezure of everything on the disk and the prosecution can argue after the fact what should have been discoverable.




I'm Sorry Your Honor....
By danielravennest on 1/24/2012 9:18:50 PM , Rating: 2
But I kept my encryption key on Megaupload, and that seems to be down now. :-(




The Judge is Wrong
By CorwinOfAmber on 1/25/2012 10:41:26 PM , Rating: 2
I must respectfully totally disagree with the judges reasoning in this case. It's wrong.

People have a constitutional right to not self-incriminate. You cannot be forced to provide evidence against yourself. Just like spouses cannot be forced to testify against another spouse unwillingly.

I don't understand the legal reasoning this judge is using but I guarantee if it stands - it will end up in a higher court - as it should.

The article implies convenience as a factor in forcing the woman to provide the password to the encrypted data. As in "it would take decades to decrypt without it".

My apologies to law enforcement but I don't recall anything based in law that would allow them to argue such a point - never mind get a judge to agree with their reasoning.

If you have a problem with encrypted data on personal electronic devices then simply ban the sale of these types of software.

But requiring defendants to incriminate themselves because it doesn't meet your schedule is blatantly abusive as it relates to your right not to incriminate yourself.




By EricMartello on 1/24/2012 7:36:48 PM , Rating: 1
quote:
Ramona Fricosu, the defendant who was accused of bank fraud in 2010


Ok so she was accused of a crime, but not convicted of said crime.

quote:
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.


No, it sends a message to authorities that people are not criminals unless you can PROVE that they are, and that these people have no obligation to assist authorities in proving the criminal ALLEGATIONS made against them.

It looks to me like they cannot prove their allegations of fraud and the defendant's constitutional right is simply getting in their way. That amendment in place to prevent people who have let their "authority" send them on a power trip.

quote:
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."


So she's a potential criminal and not a potential wrongly accused victim of an out-of-control government that has run amok? Yeah yeah, slippery slope BS does not add any validity to this obvious violation of constitutional rights.

I like how there are so many presumptions of guilt in place by these so-called "unbiased authorities"...but if this is a criminal case, I'm pretty sure it's innocent until PROVEN guilty.

How about law enforcement stops picking on small-time crooks and starts enforcing these laws unilaterally. Big banks and the people working for them have been committing fraud on a MASSIVE scale but not a single criminal allegation has been brought against them. Both before and during this economic crash we've been going through for the past few years, banks have been getting away with crimes unchecked.

Let's criminally prosecute any authorities who fail to do their duty and apply the law to ALL who have violated it.




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