Posted on 07/11/2011 10:39:22 AM PDT by Smogger
The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase. The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.
Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.
In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"
...
"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it," said EFF Senior staff attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."
(Excerpt) Read more at news.cnet.com ...
If you’re really paranoid that is the way to do it. I haven’t yet, but maybe someday. I just use truecrypt full disk now, but I guess I can setup a hidden and fake OS in there. Truecrypt calls it ‘plausible deniability’. Well, it’s a part of that whole idea they have.
A few years back I used truecrypt to set up an encrypted drive on my computer to store tax returns, scanned receipts etc. Following the recommendations from the truecrypt instructions I set up a long password (more like a pass paragraph) with upper and lower case letter, numbers and symbols. Worked fine for a couple months, until I fell behind with my receipt scanning and didn’t mess with it for a few weeks, then of course I forgot the password and couldn’t find where I had written it down. So long story short, hours of work down the crapper. I guess if my computer had been confiscated by the feds, I could also be facing jail time for not being able to produce the password. That sure would add insult to injury...
I find this outrageous - there’s no clearer example of self-incrimination short of being compelled a gunpoint to say, “Yeah, I did it” and sign a “confession.”
Of course, one could always have an encryption program that wipes the hard drive if you enter the password incorrectly X number of times (3 or 5 or 10). One could fail to capitalize a letter, or get “fat fingers” or whatever...and good-bye data.
Your reminder of the simple Hillary Clinton defense of “I don’t recall” is a big winner - because they cannot prove otherwise, just as no one could prove that “the world’s smartest woman” remembered none of the multitude of details of what she was being questioned about. They could be very suspicious, but never prove a thing.
I don’t advocate breaking the law (even if the law is violative of the Constitution, as it often is). However, certain parts of the Constitution’s protections of our rights must be inviolate or we are dealing with nothing less than an outright dictatorship. The 5th Amendment protection against self-incrimination is one such. The data on a computer is certainly capable of incriminating a person - hence the reason the DOJ wants to see it - and being compelled to release it CANNOT be permitted. I, too, would rather be in jail on contempt than to release the information. Besides, I don’t put it past prosecutors to falsify what is there to suit their case (evidence tampering is not exactly a new concept), but they can’t do it if they haven’t had access to the data in the first place.
” You gonna bring back the rack?
The Iron maiden?
Drawing and quartering?
Water boarding that is prohibited from being used on mortal enemies? “
Ummmm...
http://www.freerepublic.com/focus/f-news/2746859/posts
“”VIDEO - Handcuffed man repeatedly kicked, beaten, and tasered by police while in handcuffs””
Just sayin’.....
If this was in a book in a foreign language the DOJ would have to hire an interpriter.
When the Feds show up at your house with a search warrant, they can compel your cooperation in unlocking doors and opening safes and such. Demanding a laptop password is little different.
“3) Show fake stuff and delete real stuff”
The problem here is that it’s very complicated to fully erase data from a hard drive so that it cant be reconstructed. Even writing over it does not do the job, as per the DOD.
A better answer would be to simply keep sensitive data on a thumb drive. You can over write that, or you can simply physically destroy it.
You seem to have missed the crucial fundamental question :
Why is it not unconstitutional to selectively enforce a potentially criminal law?
Why were not he First Rapist and his feloneous wife (800 FBI files) also jailed for having really really poor memories?
Type the blue font password, or the red font pass word...
My first response after they found the laptop would be:”Where the hell did that come from?”
Did I read the article correctly to see that the laptop encryption was done with PGP?
#3 might make sense for life-or-death data, but in general, the real key is to make #1 look good and protected enough, and to not leave any trace of #2 being there at all (e.g., hidden via steganography).
So, under duress, I might "reluctantly" provide my password which will "expose" some tax documents or other bank records and some... er... "blue" media files that I didn't want the Mrs. to know about.
Meanwhile, the real critical data is hidden (but still encrypted) in plain sight.
I think I’ll set my encryption password to be “F-off, you DOJ Obambot monkeyslime. You can KMA if you think I am going to give you my password.” And I think I will have a case for wrongful imprisonment...
“When the Feds show up at your house with a search warrant, they can compel your cooperation in unlocking doors and opening safes and such. Demanding a laptop password is little different.”
They can “compel and demand” all they want. They still can’t make you do it. Opening the door keeps them from breaking it down or cutting open a safe. Demanding a password is not the same.
Oh, no problem...we have a backup of it. Try again.
Can’t be, those against Gitmo would be up in arms if such things were happening to suspects held in American’s jail cells. < /sarc >
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