FARK.com: (6897958) Judge rules that defendant MUST decrypt laptop so they can use it to incriminate her. Buh-bye Fifth Admendment

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		Judge rules that defendant MUST decrypt laptop so they can use it to incriminate her. Buh-bye Fifth Admendment (wired.com)		746
		More: Asinine, Judges' Rules, Fifth Amendment, financial crimes, bank fraud, laptops, typewriters, federal judges

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31241 clicks; posted to Main » on 23 Jan 2012 at 11:00 PM | Favorite | share:

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746 Comments (+0 »)

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Gyrfalcon

2012-01-23 11:01:25 PM

Oops, must have hit "reformat" by mistake.

CSM101

2012-01-23 11:02:41 PM

Why don't they just get Chloe to break the encryption? She'd have it done in the next hour

serial_crusher

2012-01-23 11:02:41 PM

Man, it must suck to be her, forgetting the password like that.

altinos

2012-01-23 11:03:07 PM

So the government invested in the $5 wrench. Nice.

super_grass

2012-01-23 11:03:43 PM

FTFA:

"The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud."

So essentially the authorities are making the woman reveal something they pretty much have warrant to search?

To me, this is no different than asking the suspect to unlock a door or provide the combinations to a safe seized with a warrant.

spidermann

2012-01-23 11:03:47 PM

at least it was only the "5th Admendment" and not the "Fifth Amendment". If it was the Fifth Amendment I would be worried.

Satanic_Hamster

2012-01-23 11:03:48 PM

Eh. Not too different then, say, a judge ordering someone to open a safe. Something that's VERY well established in case law.

JonZoidberg

2012-01-23 11:04:09 PM

Yeah, judge, I encrypted it with a shared key on this little fob that the cops "Broke" when they seized my stuff, so it'll never get decrypted, so contempt of court is moot.

Or

I forgot the password, what now?

unicron702

2012-01-23 11:04:50 PM

Gyrfalcon: Oops, must have hit "reformat" by mistake.

Came in to say something similar. Seems to evidence tampering would be a better conviction than bank fraud.

MisterLoki

2012-01-23 11:06:14 PM

Password: rm -rf

Communist_Manifesto

2012-01-23 11:06:17 PM

Anybody more familiar with law know how a Gee Golly Shucks I plum forgot that there password defense would work?

Uncorrect

2012-01-23 11:06:46 PM

spidermann: at least it was only the "5th Admendment" and not the "Fifth Amendment".

It depends on which album. The old 5th Amendment stuff was pretty good but their new music is just so commercial.

Gunther

2012-01-23 11:06:57 PM

Another example of old people just not freaking getting technology.

serial_crusher

2012-01-23 11:07:05 PM

If you're not keeping your incriminating evidence in a hidden partition, you're doing it wrong.

scarmig

2012-01-23 11:07:11 PM

It may be "legal" that they can compel you to open the safe, or give your password, but certainly is not one of the enshrined "rights", such as they are.

So one has to weigh the consequences: What is potentially worse, the contempt of court charge, or whatever they can find/plant/fantasize about on your hard drive?

jaylectricity

2012-01-23 11:07:31 PM

It's not a 5th amendment issue, but I don't believe she should be required to assist the police. She can hand over the evidence, or supposed evidence (since they don't even know what they're looking at), and wipe her hands. That should fulfill the subpoena.

Giltric

2012-01-23 11:07:34 PM

Can they take a dna sample with a warrant or can you take the 5th in that too?

Endive Wombat

2012-01-23 11:07:44 PM

JonZoidberg: I forgot the password, what now?

Honestly, if that's the case...what do they do then?

baorao

2012-01-23 11:07:47 PM

so just keep her in holding her while they brute force it.

zwesom

2012-01-23 11:08:12 PM

So as I understand it FTA, the judge is saying that forcing her to decrypt the hard drive doesn't violate the 5th amendment because the government will not use her act of producing the hard drive against her? My brain hurts.

almandot

2012-01-23 11:08:15 PM

Eh this isn't too different than the judge kicking the defendant in the crotch until they tell something they were trying to plead the fifth and not tell so I'm okay with it.

/? O_o

thedarkjedi

2012-01-23 11:08:17 PM

I think that falls more under search and seizure, which in this case was not unreasonable.

Oh, hi, Fifth Amendment! I didn't see you there! Have you been here the whole time?

vsavatar

2012-01-23 11:08:28 PM

I'm sorry your honor, but I seem to have forgotten the passphrase. With bank fraud it's probably best just to give it up, since the penalty is not unbelievably horrible. For sexual offenses however, most people would rather do a couple years for contempt than end up on the registry and do five years minimum.

remus

2012-01-23 11:08:40 PM

So, you use trucrypt and setup a partition with a duress password so that's all they find and not the hidden partitions...

rolladuck

2012-01-23 11:09:11 PM

super_grass: FTFA:

"The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud."

So essentially the authorities are making the woman reveal something they pretty much have warrant to search?

To me, this is no different than asking the suspect to unlock a door or provide the combinations to a safe seized with a warrant.

This.

It's not a 5th Amendment case based on the fact that the woman had already been heard saying that she had incriminating evidence encrypted on her hard drive. She made this statement of her own free will.
The similar Vermont child porn case was likewise successfully argued on the basis that some contents of the laptop had been observed by a government official.

The "locked safe" analogy in these cases is like if someone stated that the evidence was locked in the safe, or in the Vermont case, as if someone had material pulled out of the safe, which he promptly put back in the safe and locked.

It also would not be in her best interest to conveniently "forget" the password. She could be held in contempt of court until the $5 wrench reminds her what it was.

Gyrfalcon

2012-01-23 11:09:11 PM

Satanic_Hamster: Eh. Not too different then, say, a judge ordering someone to open a safe. Something that's VERY well established in case law.

Nope. More like asking for the records INSIDE the safe, at least that's what I'd be arguing were I her lawyer. If they have a warrant for the documents inside, then fine. Let them drill the safe open; I don't have to provide incriminating documents.

jaylectricity

2012-01-23 11:09:19 PM

What if the police had a hand-written note that they thought said, "I killed Mr. Jones." But it said it in a foreign language and they have yet to figure out which language.

Would she be required to translate it for them?

croesius

2012-01-23 11:09:36 PM

almandot: Eh this isn't too different than the judge kicking the defendant in the crotch until they tell something they were trying to plead the fifth and not tell so I'm okay with it.

/? O_o

Mom?

spidermann

2012-01-23 11:09:49 PM

Uncorrect: spidermann: at least it was only the "5th Admendment" and not the "Fifth Amendment".

It depends on which album. The old 5th Amendment stuff was pretty good but their new music is just so commercial.

I liked they're stuff better when they were The Constitutions. I saw them on tour with The National Archives and Fore Fathers. Awesome time, especially when they did the Tripoint Trio Trick Encore.

NateAsbestos

2012-01-23 11:10:09 PM

I like how they ask her to give up the unencrypted hard drive by February 21st. Not to decrypt it in front of them.

"Oops your honor I've accidentally run DBAN on this thing for a month straight. Sometimes I do that by accident..."

JVD

2012-01-23 11:10:28 PM

Since when does the government care about the Bill of Rights?
They've been trampling on our Unalienable God Given Rights for a long time, why stop now?

CigaretteSmokingMan

2012-01-23 11:10:32 PM

It's a 4th Amendment issue. It's the same as if a judge issued a search warrant to go through her office file cabinet.

Daobaz

2012-01-23 11:11:03 PM

A lot of readily available programs can be found that will thwart all efforts of investigators via encryption.

It's a dirty little secret they don't want you to know.

scalpod

2012-01-23 11:12:23 PM

If you gave your testimony in coded riddles would you be held in contempt?

Iv'e told you everything I know, it's not my fault you're all too stupid to understand what I'm saying.

MrEricSir

2012-01-23 11:12:27 PM

How long until decryption software offers a secret "password" that wipes your data and replaces it with fake data? Sort of a boss key for the courts.

WayToBlue

2012-01-23 11:12:33 PM

Gyrfalcon

Oops, must have hit "reformat" by mistake.

It's cute that you think that would do anything. Forgetting that they have forensic copies of this data, formatting does next to nothing to actually remove data.

Communist_Manifesto

Anybody more familiar with law know how a Gee Golly Shucks I plum forgot that there password defense would work?

I am extremely not a lawyer, but my understanding the response to that would be:

"Totally understand, you just need to stay in jail for contempt of court until you remember."

ha-ha-guy

2012-01-23 11:12:45 PM

JonZoidberg: Yeah, judge, I encrypted it with a shared key on this little fob that the cops "Broke" when they seized my stuff, so it'll never get decrypted, so contempt of court is moot.

I'd say the key was too long and it was written down with a bunch of other passwords in a little black book I keep in a lockbox. Sadly it appears this book was lost when the cops raided (they must have misplaced it) and leave it at that.

remus: So, you use trucrypt and setup a partition with a duress password so that's all they find and not the hidden partitions...

You'd have the problem though of say you decrypt a 250 GB volume, but your drive is 500 GB. Cops might notice that. You'd have to change out the labels on the outside of the drive or something as well.

PsiChick

2012-01-23 11:13:22 PM

"I'm so sorry, Your Honor, I can't imagine how that magnet got near my computer. Those darn cats!"

Gyrfalcon

2012-01-23 11:13:26 PM

NateAsbestos: I like how they ask her to give up the unencrypted hard drive by February 21st. Not to decrypt it in front of them.

"Oops your honor I've accidentally run DBAN on this thing for a month straight. Sometimes I do that by accident..."

Wait, she HAS the drive?

Oh, what a world, what a world...

scarmig

2012-01-23 11:13:52 PM

Hmmm. remind me, does TrueCrypt have that "destructo-password" option yet? The one that wipes the partition instead of opening it?

zwesom

2012-01-23 11:14:04 PM

vsavatar: I'm sorry your honor, but I seem to have forgotten the passphrase. With bank fraud it's probably best just to give it up, since the penalty is not unbelievably horrible. For sexual offenses however, most people would rather do a couple years for contempt than end up on the registry and do five years minimum.

Maybe she has child porn on there?

Thosw

2012-01-23 11:14:43 PM

So what does "The judge added that the government is precluded "from using Ms. Fricosu's act of production of the unencrypted hard drive against her in any prosecution." mean, exactly?

Is it saying that she can't be prosecuted for the contents once unencrypted, or prosecuted additionally for not decrypting it should they somehow get access to the data without her help?

Kali-Yuga

2012-01-23 11:15:01 PM

I like to show all of you a secret document!

Satanic_Hamster

2012-01-23 11:15:31 PM

ha-ha-guy: I'd say the key was too long and it was written down with a bunch of other passwords in a little black book I keep in a lockbox. Sadly it appears this book was lost when the cops raided (they must have misplaced it) and leave it at that.

And then you stay in jail on contempt charges until the judge gets bored.

lilplatinum

2012-01-23 11:15:33 PM

Its actually a difficult case from a legal perspective because the previous case law doesn't translate properly to the e-world.

IIRC the distinction was you can force someone to give up something they have but not something they know. For example - if there is a key to a safety deposit box the police can get it from you, but not the combination to a lock.

Now what about an encryption key that is physically on a disk or whatever somewhere and not in their head - how is this considered? IMO that would be more like a door key whereas your login password would be something else.

But I read about this months back so I could also be remembering the legal arguments wrong or, more likely, oversimplifying them.

jingks

2012-01-23 11:15:36 PM

LarryDan43

2012-01-23 11:15:56 PM

CSM101: Why don't they just get Chloe to break the encryption? She'd have it done in the next hour

Lemon face.

seancakes

2012-01-23 11:16:05 PM

Daobaz: A lot of readily available programs can be found that will thwart all efforts of investigators via encryption.

It's a dirty little secret they don't want you to know.

Or a microwave.

The Life Of Brian

2012-01-23 11:16:28 PM

JonZoidberg: Yeah, judge, I encrypted it with a shared key on this little fob that the cops "Broke" when they seized my stuff, so it'll never get decrypted, so contempt of court is moot.

Or

I forgot the password, what now?

I would figure it would then be 'contempt' and you're going away until you comply... OR with some new rules, a free trip to Cuba!

IF you want to keep something secret from law enforcement, encrypting the whole computer is NOT the way!

Use something like TrueCrypt and encrypt a file with a 'garbage' name in the temp directory...IF they find it, they cannot prove its a real file....

Or encrypt a second hard drive in the machine - the WHOLE drive, so there is no boot record or anything - it looks blank...and your plausible denial is HEY its just a spare drive I planned to use to back up to and haven't yet..(NO sir, it does not contain 200 gigs of movies! It's just blank! I have several blanks around here!)

Truecrypt docs suggest you make an encrypted file within an encrypted file, so you can give up ONE password to show you are co-operating - For LEGAL measures, I think this would be worse - It would show you KNOW how to do this, HAVE done this, and suggests motive to have more...

I think the better way is to just play dumb...have a file in what is a Windows garbage directory with a garbage name..and you don't know what it is... OR a blank drive connected to the machne that I was going to use later but had not set up yet...

/NOT that I've ever DONE such things.... I'm an honest law loving person and would never have illegal/pirated content on any of MY computers!

iron de havilland

2012-01-23 11:16:43 PM