Federal Judge: Americans can be forced to decrypt their laptops

[TVDOC]

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

American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.
 
Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21--or face the consequences including contempt of court.
 
Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be "compelled in any criminal case to be a witness against himself," which has become known as the right to avoid self-incrimination.
 
"I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well

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Balance at link......

doc

[Maxiest]

At first, I was going to jump to the defense of the citizen...

But a computer is no different than a safe, with the encryption key being the "key."  If she had a safe full of documents they would be considered physical evidence and as such be entered into evidence. Good ruling IMO.

[Rebel]

format c:

Here ya go, judge. All decrypted.

[TVDOC]

Apparently not the first instance:

http://www.conservativecave.com/index.php/topic,23048.0.html

doc

[BlueStateSaint]

format c:

Here ya go, judge. All decrypted.

When I worked at the lab, the chemist I shared a lab with for 9 years did exactly this.  In the late 80s, he had entered a whole bunch of data into one of the computers, and because it was a reporting format, he decided to call the file "format" . . . After the prompt came up, he said "yes" to it, and wiped out several years' worth of data on the (hot) Love Canal samples.  Thank God we had paper backup.

[NHSparky]

Sorry, but Fourth Amendment also applies here as well.  If the warrant was obtained legally, they the police can take possession of the computer, but again, he's wrong in that she's required to give them the password. 

This one will go to the SCOTUS, who will likely find in favor of the defendant.

[thundley4]

Would it be possible to have a program with two passwords?  One that would do the decryption and a second one that would format the drive?

[SSG Snuggle Bunny]

Sorry, but Fourth Amendment also applies here as well.  If the warrant was obtained legally, they the police can take possession of the computer, but again, he's wrong in that she's required to give them the password. 

This one will go to the SCOTUS, who will likely find in favor of the defendant.

It's a debate, for me, between lawfully executed search warrant vs. right to not self-incriminate, which if I understand is your take as well.

Still, a drug dealer has no right to resist a SW until he's had an opportunity to destroy evidence.

Even the 5th Amendment seems to draw the line at withholding or destroying evidence. The 5th was designed to prevent forced confessions, not stymie the collection of external, extra-personal objects.

[DefiantSix]

It's a debate, for me, between lawfully executed search warrant vs. right to not self-incriminate, which if I understand is your take as well.

Still, a drug dealer has no right to resist a SW until he's had an opportunity to destroy evidence.

Even the 5th Amendment seems to draw the line at withholding or destroying evidence. The 5th was designed to prevent forced confessions, not stymie the collection of external, extra-personal objects.

Evidence is only evidence if it is usable - as the LEOs find it - against the suspected perp in a court of law.

If this chick were charged with book making instead of bank fraud, would the LEOs get to sweat the key to the bookie's cipher out of her if they couldn't read the records on their own?  I don't think so.  They'd either be forced to try the case on other evidence (apparently they have a jail-house recording of her talking about her part in the crime) or dismiss the case.

[DumbAss Tanker]

Requiring her to take the affirmative step to decrypt the drive and thereby possibly incriminate herself is very probably a bridge too far, legally.

[NHSparky]

It's a debate, for me, between lawfully executed search warrant vs. right to not self-incriminate, which if I understand is your take as well.

Still, a drug dealer has no right to resist a SW until he's had an opportunity to destroy evidence.

Even the 5th Amendment seems to draw the line at withholding or destroying evidence. The 5th was designed to prevent forced confessions, not stymie the collection of external, extra-personal objects.

Okay, let's say it's a notebook written in a shorthand only she and maybe one or two other people can understand or decipher.  Should she be compelled to translate those papers, knowing they'd incriminate her?  I'd say no.  If the LEO's can convince someone else to translate, great.

Like stated earlier, if you don't have the ability to decipher or use the evidence doesn't mean you can compel a defendant to do it for you.

[SSG Snuggle Bunny]

Requiring her to take the affirmative step to decrypt the drive and thereby possibly incriminate herself is very probably a bridge too far, legally.

Isn't there an affirmative step taken when someone unlocks the door for the police serving a warrant?

I mean, if the cops knock on my door I could use a couple of extra minutes to de-criminate myself. The fingernail marks and bodily fluid samples don't exactly clean themselves, after all.

[DefiantSix]

Isn't there an affirmative step taken when someone unlocks the door for the police serving a warrant?

I mean, if the cops knock on my door I could use a couple of extra minutes to de-criminate myself. The fingernail marks and bodily fluid samples don't exactly clean themselves, after all.

I suppose it would depend on whether prosecuting attorneys routinely charge Obstruction when the PD has to break down a door.  If the charge routinely gets slapped back at them by judges/juries, or not charged at all by prosecutors, I would suspect making that case might be a bit difficult.

[cmypay]

Isn't there an affirmative step taken when someone unlocks the door for the police serving a warrant?

I mean, if the cops knock on my door I could use a couple of extra minutes to de-criminate myself. The fingernail marks and bodily fluid samples don't exactly clean themselves, after all.

If the argument against this is the right to not self-incriminate, the a judge compelling DNA samples could be argued the same way. Person forced to give up a part of their own personhood, which may or may not incriminate them in a crime. This seems much less invasive to me.

[docstew]

If the argument against this is the right to not self-incriminate, the a judge compelling DNA samples could be argued the same way. Person forced to give up a part of their own personhood, which may or may not incriminate them in a crime. This seems much less invasive to me.

But in your instance, being compelled to give DNA is under due process. Being compelled to give a password to all your criminal records is different.

[DefiantSix]

But in your instance, being compelled to give DNA is under due process. Being compelled to give a password to all your criminal personal records is different.

FIFY.

When they got their grimy little mitts on Martha Stewart's records the evidence of wrongdoing wasn't there, so in order to save face, they had to bust her on ancilliary charges.  And, oh, in the process assassinate her character and reputation in the public forum.  (No, I don't like Martha, but I like what the government did even less).

[DumbAss Tanker]

If the argument against this is the right to not self-incriminate, the a judge compelling DNA samples could be argued the same way. Person forced to give up a part of their own personhood, which may or may not incriminate them in a crime. This seems much less invasive to me.

Not really comparable, the suspect does not have to actively cooperate to render a DNA sample, the warrant to seize really gives the cops the right to hold you down and draw blood against your will, it's just that damn' near everybody normal at that point would rather throw in the towel and open up for the mouth swab.

[thundley4]

Not really comparable, the suspect does not have to actively cooperate to render a DNA sample, the warrant to seize really gives the cops the right to hold you down and draw blood against your will, it's just that damn' near everybody normal at that point would rather throw in the towel and open up for the mouth swab.

This past year saw a crackdown on drunk driving here.  A couple of times when they had DUI road blocks set up, they had judges on standby to issue warrants for blood letting for people that refused the breathalyzer test.

[docstew]

I've seen commercials here in NC where they have a bus that they pull up to sobriety checkpoints. Fail, they cuff you and walk you to the bus. On the bus is a evidentiary breathalyzer and a judge. Fail the breathalyzer, you're going in front of the judge right then and there.

[BlueStateSaint]

I've seen commercials here in NC where they have a bus that they pull up to sobriety checkpoints. Fail, they cuff you and walk you to the bus. On the bus is a evidentiary breathalyzer and a judge. Fail the breathalyzer, you're going in front of the judge right then and there.

Well, at least they get a speedy hearing . . . !

[NHSparky]

I've seen commercials here in NC where they have a bus that they pull up to sobriety checkpoints. Fail, they cuff you and walk you to the bus. On the bus is a evidentiary breathalyzer and a judge. Fail the breathalyzer, you're going in front of the judge right then and there.

Yeah, I don't think this guy did so hot.

And they can be charged and bail set by the judge, but no way in hell you're going to go on trial right then and there, sans lawyer and unable to mount an effective defense.