5th Amendment spit on by Colorado "judge"

[MARIS61]

http://www.cnn.com/2012/01/24/tech/web/judge-defendant-decrypt-laptop/index.html?hpt=hp_bn6

A judge on Monday ordered a Colorado woman to decrypt her laptop computer so prosecutors can use the files against her in a criminal case.

The defendant, accused of bank fraud, had unsuccessfully argued that being forced to do so violates the Fifth Amendment's protection against compelled self-incrimination.

"I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," Colorado U.S. District Judge Robert Blackburn ruled Monday (.pdf).

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

The case is being closely watched (.pdf) by civil rights groups, as the issue has never been squarely weighed in on by the Supreme Court.

Full disk encryption is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power.

The government had argued that there was no Fifth Amendment breach, and that it might "require significant resources and may harm the subject computer" if the authorities tried to crack the encryption.

 

[MARIS61]

Sorry, please move to OT.

 

[Eastoff]

Yeah, that is really bad.

 

[blue32]

So if someone filmed themselves killing someone, and then encrypted the video on a laptop they own, it'd be against the law to get them to decrypt it, or have someone do it?

 

[PapaG]

I'm not sure how personal property applies to the 5th Amendment. Sooner or later, somebody will be able to crack her encryption, anyhow.

Although, I'm also not sure why the woman should be forced to open up her code, either, because that's basically using her to investigate herself.

An interesting legal case.

 

[PapaG]

So if someone filmed themselves killing someone, and then encrypted the video on a laptop they own, it'd be against the law to get them to decrypt it, or have someone do it?

That's really the issue here, isn't it? I can see the judge's reasoning, but I also can see MARIS' concern with that reasoning, too.

 

[Ed O]

If a suspect locked a closet and that closet would take a LONG time to open but the suspect could easily unlock it, it doesn't seem like it's bad policy to be able to compel him to unlock it.

I don't think that this "closet unlocking" would violate the fifth amendment, either, although I'm not certain.

Data encryption is similar. There are algorithms that could take years of computer processing to decrypt, and the court being able to force someone to unlock it doesn't seem to be a bad thing.

Ed O.

 

[MARIS61]

If a suspect locked a closet and that closet would take a LONG time to open but the suspect could easily unlock it, it doesn't seem like it's bad policy to be able to compel him to unlock it. Ed O.

It's certainly illegal and un-Constitutional. I don't even see room for debate.

Under our legal system a suspect is an innocent person. An innocent person cannot be forced to to aid his prosecutors.

In fact, neither can someone who has already been convicted.

This would be the same as forcing a bank robber/murderer to lead you to where he buried the money/body.

 

[Denny Crane]

Maris is wrong as usual. It sure seems that a warrant that names the thing and time and place is fully constitutional. And unencrypted incriminating documents are subpoenaed all the time, legitimately.

You can be compelled to testify against yourself - cannot plead the 5th - if you are granted immunity.

In fact, it is unlawful to tamper with evidence.

 

[jlprk]

If the prosecutors can easily read her financial records, the law says they can seize them and use them as evidence. But if they can't read them unless she self-incriminates and helps them, she does not have to.

As for her immediate situation, fighting the illegal imprisonment, which will last for months preceding the trial--
If she's kept in jail for refusing to self-incriminate, well, she would have been in jail anyway, had she given the password, ensuring a guilty verdict. So there's nothing to lose--I'd advise her to not give the password, while of course appealing her illegal imprisonment while it lasts, which is what she's doing.

 

[Denny Crane]

If she put documents that incriminate her in a safe, she'd have to open the safe. It's the law. This is a no-brainer.

 

[magnifier661]

Maris is wrong as usual. It sure seems that a warrant that names the thing and time and place is fully constitutional. And unencrypted incriminating documents are subpoenaed all the time, legitimately.

You can be compelled to testify against yourself - cannot plead the 5th - if you are granted immunity.

In fact, it is unlawful to tamper with evidence.

Who are you?

 

[Denny Crane]

Who are you?

Denny Crane!

[video=youtube;qqsIpYQ5e_g]

 

[magnifier661]

Denny Crane!

[video=youtube;qqsIpYQ5e_g]

No really?! You know a lot about a lot. I thought I was a sponge for knowledge!

 

[MARIS61]

Maris is wrong as usual. It sure seems that a warrant that names the thing and time and place is fully constitutional. And unencrypted incriminating documents are subpoenaed all the time, legitimately.

You can be compelled to testify against yourself - cannot plead the 5th - if you are granted immunity.

In fact, it is unlawful to tamper with evidence.

None of that is relevant to this issue which is the government trying to physically force a person to provide evidence against herself.

No search warrant can compel the accused to join the search party.

If they can't find the evidence on their own, too bad.

I suppose if it wasn't encrypted but it was too confusing for their analysts to understand you'd be okay with waterboarding her until she explained it?

 

[MARIS61]

If she put documents that incriminate her in a safe, she'd have to open the safe. It's the law. This is a no-brainer.

No, she wouldn't. You're making shit up, AGAIN.

In this case, they don't even know what is on her computer. They assume/suspect it may hold evidence, but have no knowledge that it has anything more than S2 posts.

They're fishing and want the fish to bait their hook for them. They are inept at their job and are embarassing themselves.

 

[jlprk]

If she put documents that incriminate her in a safe, she'd have to open the safe. It's the law. This is a no-brainer.

I don't understand why the safe owner would comply, if the case depends upon evidence in the safe. It would be stupid to tell them the combination. It would be better to take a couple months in jail for not complying, until the prosecutor dropped the case, or until the person was found not guilty at trial.

I have the same reasoning in this encryption case, so I would advise her not to disclose the password. She can't lose by not complying, other than a short illegal imprisonment. If she's found guilty without the encrypted evidence, she would have been found guilty with it too.

It's a no-brainer.

 

[PtldPlatypus]

If she put documents that incriminate her in a safe, she'd have to open the safe. It's the law. This is a no-brainer.

This is unquestionably the best analogy for this situation. Is there a legal precedent for the state compelling someone to open their safe to provide evidence against them?

 

[Denny Crane]

None of that is relevant to this issue which is the government trying to physically force a person to provide evidence against herself.

No search warrant can compel the accused to join the search party.

If they can't find the evidence on their own, too bad.

I suppose if it wasn't encrypted but it was too confusing for their analysts to understand you'd be okay with waterboarding her until she explained it?

LOL. What law school did you attend?

The finding is here:

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

 

[PtldPlatypus]

I don't understand why the safe owner would comply, if the case depends upon evidence in the safe. It would be stupid to tell them the combination. It would be better to take a couple months in jail for not complying, until the prosecutor dropped the case, or until the person was found not guilty at trial.

I have the same reasoning in this encryption case, so I would advise her not to disclose the password. She can't lose by not complying, other than a short illegal imprisonment. If she's found guilty without the encrypted evidence, she would have been found guilty with it too.

It's a no-brainer.

Agreed on all counts.

 

[Denny Crane]

This is unquestionably the best analogy for this situation. Is there a legal precedent for the state compelling someone to open their safe to provide evidence against them?

Of course.

In fact, the courts forced Nixon to turn over incriminating evidence (tapes) he made. That was damning evidence in his own voice.

The thing is, if the courts and lawyers know about the existence of the evidence, they have a right to it, as long as they get a subpoena.

If you read the finding I linked to above, it turns out she identified the computer as having stuff on it that the prosecution would probably want, and that the encryption was a ploy to interfere with the prosecution.

 

[MARIS61]

LOL. What law school did you attend?

The finding is here:

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

A finding that is wrong and will be thrown out by a higher court.

Here's the defendant's side:

https://www.eff.org/files/filenode/us_v_fricosu/fricosuamicus7811.pdf

Judge Robertson is notable only through the outlandish ruling he has delivered and the total lack of support he has received from his colleagues.

 

[MARIS61]

Of course.

In fact, the courts forced Nixon to turn over incriminating evidence (tapes) he made. That was damning evidence in his own voice.

The thing is, if the courts and lawyers know about the existence of the evidence, they have a right to it, as long as they get a subpoena.

If you read the finding I linked to above, it turns out she identified the computer as having stuff on it that the prosecution would probably want, and that the encryption was a ploy to interfere with the prosecution.

Wrong again.

Nixon erased all incriminating evidence and turned over nothing of value. He was not charged or prosecuted for destroying evidence or hampering prosecution. In fact he was supported in the manner of a king for decades at the public's expense.

Having the right to search for alleged evidence is a far cry from having the right to force the accused to get it for you. Saying it's something they want could mean she has nude pics of herself on it.

 

[Denny Crane]

Wrong, MARIS61*

What is your expert legal opinion on why Nixon had to turn over those tapes he made? The fool should have encrypted them!

 

[MARIS61]

Speaking of law school, this clown only spent 6 years total in college and has a only a BA and JD for his "efforts".

Guess he's got connections.

 

[Denny Crane]

Wrong again.

http://en.wikipedia.org/wiki/Watergate_tapes#The_.22Smoking_Gun.22_tape

 

[MARIS61]

Wrong, MARIS61*

What is your expert legal opinion on why Nixon had to turn over those tapes he made? The fool should have encrypted them!

Erasing > encrypting.

 

[jlprk]

LOL. What law school did you attend?

The finding is here:

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

Maybe the law school of the defendant's own lawyer?

Ramona: yeah cause they kept asking me for passwords and I said, ya know no I just didn’t answer them
Scott: right (SC). Because when you went there you took your laptop
Ramona: yeah I think so I think I did
Scott: and so (SC) it would been on there
Ramona: yeah
Scott: OK
Ramona: and my lawyer said I’m not obligated by law to give them any passwords or anything they need to figure things out for themselves

The judge disagreed, saying that only verbal testimony and disclosing what is in the defendant's own mind are protected. At the end of the document, what is this, a trade of immunity for her testimony? He decides

5. That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution.

 

[PtldPlatypus]

If the ruling quoted in the defendant's argument is valid--that "a defendant may be compelled to produce the key to a lockbox, but not the combinationto a safe"--then I have to agree with Maris here.

 

[MARIS61]

Wrong again.

http://en.wikipedia.org/wiki/Watergate_tapes#The_.22Smoking_Gun.22_tape

That fully supports my post.

Nixon erased/destroyed the most crucial evidence (where he plotted to overthrow the country and round up all liberals for execution?) and his guilt in destroying evidence and obstructing justice was never prosecuted despite being proclaimed obvious by those responsible for prosecuting.