Have PGP..Be considered a Criminal??

[Und3ertak3r]

A Minnesota appeals court has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent.

http://news.com.com/Minnesota+court+takes+dim+view+of+encryption/2100-1030_3-5718978.html

found the link on Slash dot..

Interesting it seems if you play with encryption and your being investigated for what ever then haveing these tools implies intent.. far out..

your thought.. or is this my twist on the info..

[Striek]

Used in this context, encryption software is a means to an end. If I beat you to death with a pipe wrench, I will be carged with `assault with a weapon` or whatever the local equivalent in your area is. This does not mean that all plumbers are guilty of deadly weapons posession.

To put it another way, as a computer security student, I have umpteen gazillion different penetration and scanning tools available to me, and stored locally. These are not considered illegal, unless I use them as part of an illegal attack, at which point their value as evidence would be unquestionable.

In this case, the use of encryption tools is not illegal. His posession of them, however, suggests that he is using them to hide something. Now given the fact that he has been charged with the solicitation of a minor, the presence of tools used to hide this evidence ar a testament to the fact that any child pornography he posseses is not on his hard drive by accident.

It I beat you to death with my keyboard, then my keyboard would be admitted into evidence as a weapon. Nobody assumes that this would set a precedent claiming that all keyboards are weapons. It is only used to prove the fact that I did indeed make use of a weapon.

[jinxy]

I notice your use of the term, "beat you to death". Considering your blood stained carpet thread...............I am starting to worry about you Striek. LMAO

[RoadClosed]

There has been some rumblings in congress about encryption software. This is similar. But it seems that up until now the constitution has provided some shelter. The thinking goes along like this... if I have a warrent and I want to search your PC and you don't give me your encryption key and the encryption is strong enough that I cannot break it then you show intent. Nothing new, this is what this article and Striek are saying. But I wanted to add a perspective, this is like drunk driving. If you do not submit to a blood test or breath test AND you have beed pulled over and given one of those tests where you walk the line AND the officer finds you as a high probabilty of having committed drunk driving or at least drinking, you then are in essence guilty of a crime by not submitting to a blood alchol test when directed according to law. Not the same, but a crime none the less.

Failing to divulge encryption keys could fall into the same presedence. Being you are not guilty of the crime, for lack of evidence but guilty of intent. Perhaps guilty of a lesser crime.

[thehorse13]

How interesting. I wonder if Bank of America and/or other corporations will be considered criminals. Many financial organizations are turning to encryption solutions because of all the hokus pokus with account info theft over the last few years.

I think that's pretty far out. I must be a criminal mastermind.

--TH13

[gore]

Originally posted here (http://www.AntiOnline.com/showthread.php?threadid=268375#post841891) by thehorse13
I must be a criminal mastermind.
--TH13

You are now that you're friends with me. ;) I'm corrupting you bitch.

As for this, I can add to it similar to how Striek did:

If I beat a Luser half to death with a sock full of thin wire terminators, it's going to be assualt on an idiot with a half deadly weapon.

Where as if I **** smacked one, it's assualt with a friendly weapon.

Another law bounce:

If you rape a hooker is it sexual assault or theft?

[mohaughn]

The laws about intent and conspiracy have always worked this way. In order to prove intent in the US a lawyer must usually provide two different facts of evidence. One of the facts is usually a plot.

For instance, if you go and tell your friend that you are going to rob a bank and that you have a gun to do it. You haven't broken any law. Now if your friend goes to the police and tells them that you are going to rob a bank, and in the course of investigating your statement the police find a gun. You are now quilty of intent or conspiracy.

SO in this particular instance if you said, I'm going to extort money from XYZ bank by encrypting their data so that they can no longer access it, and then you have the software on your computer which could accomplish this task then you are also guilty of having criminal intent..

In the cases of banks or security researchers. Be careful what you say. It may be really difficult to prove that you were "only kidding" when you make that claim about breaking into something. As long as you don't make a statement about doing something illegal with the tools that you have you are not in violation of any law..

[gore]

Originally posted here (http://www.AntiOnline.com/showthread.php?threadid=268375#post841903) by mohaughn
I'm going to extort money from XYZ bank by encrypting their data so that they can no longer access it

Thanks! now tell me, how much is no prison worth to you ;)

[kythe]

Originally posted here (http://www.AntiOnline.com/showthread.php?threadid=268375#post841811) by Striek
Used in this context, encryption software is a means to an end. If I beat you to death with a pipe wrench, I will be carged with `assault with a weapon` or whatever the local equivalent in your area is. This does not mean that all plumbers are guilty of deadly weapons posession.

It should be noted that, at least according to the article, there was no evidence presented that any files were encrypted or evidence destroyed using the encryption program (PGP). It would seem that the legal decision found that the mere act of having encryption software constituted evidence of criminal intent, and was thus relevant to the case. I'm not a lawyer, but that sounds like it goes a tad too far, even in the light of other evidence against the defendant.

If encryption were used to hide or destroy evidence, that's one thing. But simply having encryption software in the first place?

Isn't that a bit like saying we have evidence you ran a drug lab, and the fact that you had a lock on your front door further demonstrated criminal intent, even if you didn't use it?

[RoadClosed]

I agree. the mere presence of having encryption software is NOT the same as having 1 gig of encrypted files they want access too. As for banks using encryption; horse, if the feds deliver a warrent request to have Uncle Guido's bank transactions from July of 2004 and the bank replys "sorry those files are encrypted" then yes they would be in deep shit and the Feds would pursue legal action towards the bank and take them.

For the record the government can be bastards. I posted a story about a company I worked for and their unbreakable encryption technics and what the FBI did. It was about 2 years ago?

[nihil]

I think that the judge was wrong as it appears that the existence of PGP was irrelevant.

It is not a good idea to allow irrelevant evidence as there is always a danger that you might prejudice the rest of the case.

[Tedob1]

it was never mentioned in the article if photos, encyrpted or otherwise were found on his computer. they did mention that a search of his computer's history revealed a search for 'lolitas'. because of the mention of this 'find' im going to assume that no pics were found. if no pictures were found having PHP would really be a moot point. it would seem the only evidence that convicted him was the testimony of a nine year old girl.

[RoadClosed]

PHP - PGP - PCP - HUGE difference! :)

[gore]

Originally posted here (http://www.AntiOnline.com/showthread.php?threadid=268375#post841948) by RoadClosed
PHP - PGP - PCP - HUGE difference! :)


Really, no. PCP makes everything encrypted looking ;)

[RoadClosed]

With PCP you can decrypt the Matrix.

[gore]

With Opium you can build it ;)

[jinxy]

With Opium you can build it
With MDMA you can fall in love with it.

[Goitz]

Err... excuse me.

Back to track... possession of an encryption program = criminal intent.

That's where the judgment flaw is. The program is designed to disable general access to data; and for any security-minded user, THAT POSSESSION is a must. Does the encryption of data or information, then, constitutes CRIMINAL ACT? Government security offices and services use encryption that will only be decrypted for an authorized user accessing it. Is there a criminal intent to that encryption process at all?

The possession of a gun DOES NOT automatically ascribe the intent to commit murder. If the gun is fired, was it in self-defense or in an act of manslaughter?

It defies reason that the definition of possession, in this case, must be equivocated to a intent which is not that easy to prove--a plan to commit anything malicious can never be proven unless the act is committed. Now, if the person encrypted those pornographic pictures, there still remains the issue of why the limited access procedure was instituted.

Oh, well... when the laws are not yet that proactive, expect judicial myopia.

[IKnowNot]

Minnesota court takes dim view of encryption and A Minnesota appeals court has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent.

Personally, I find these misleading and inaccurate based on what I read. It sounds more like sensationalism rather then fact.

Although I did not find actual trial transcripts, in the Minnesota Court of Appeals Published Opinions I did find STATE OF MINNESOTA IN COURT OF APPEALS A04-381 (http://www.lawlibrary.state.mn.us/archive/ctappub/0505/opa040381-0503.htm)
( watch what browser yo use to view it. Some browsers don’t respond well to it. IE worked best for me. The WC3 says “ No Character Encoding Found!” I guess this speaks to their state employees’ computer savvy? )

Basically the Defendant ( Victim’s uncle ) alleged, among other things, that his conviction should be reversed because the fact that there was a PGP encryption program on his computer was allowed into testimony and was “irrelevant evidence”.


The person who testified to this, according to the above referenced site, ... admitted that the PGP program may be included on every Macintosh computer that comes out today, and appellant may have had the text of Minn. Stat. §§ 617.246 in his computer because of prior allegations against him.

Two things of note here:

1) The Appeals Court addressed this in the above cite with Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978). And rulings on relevancy will only be reversed when that discretion has been clearly abused. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). ““The party claiming error has the burden of showing both the error and the prejudice.”” State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995).
The Defendant apparently did not meet the burden of proof required under existing case law as evidenced by the statement We find that evidence of appellant’’s internet use and the existence of an encryption program on his computer was at least somewhat relevant to the state’’s case against him.
Unfortunately I did not notice specific reference to “ the prejudice “ requirement, perhaps the Court did not feel it necessary.

2) More disturbing is the reference to the Minnesota Statute §§ 617.246 (http://ww2.revisor.leg.state.mn.us:8181/SEARCH/BASIS/mnstat/public/www/DDW?W%3DTEXT+PH+IS+%27617.246%27+ORDER+BY+SORT_KEY/Ascend%26M%3D10%26K%3D617.246%26R%3DY%26U%3D1) and that the Defendant had a copy of it on his computer because of
“...prior allegations against him "

I will go no further with that one.

In fact, I will not go further. Read it for yourself.

It is obvious that the Court was very careful to sanitize the opinion as much as practicable. But it seems very strange that the offenses charged dealt with someone paying a nine-year-old female child to straddle an adult male while nude so that he may take pictures of the child’s vagina on numerous occasions was not mentioned in the apparent appeal or the article which brought about this discussion, except in the precipitate of double jeopardy .

I do not think this case will be used in the future as the author of the article leads one to believe, that presence of encryption software implies criminal intent.

I’ll end this with this quote and for you to decide how it applies:
The record shows that appellant took a large number of pictures of S.M. with a digital camera, and that he would upload those pictures onto his computer soon after taking them

[zencoder]

Notice
This post will have little or nothing to do with the thread. I felt compelled to reply to Road_Closed, since we live in the same neck of the woods. Feel free to skip it.

Originally posted here (http://www.AntiOnline.com/showthread.php?threadid=268375#post841843) by RoadClosed
...<snip> this is like drunk driving. If you do not submit to a blood test or breath test AND you have beed pulled over and given one of those tests where you walk the line AND the officer finds you as a high probabilty of having committed drunk driving or at least drinking, you then are in essence guilty of a crime by not submitting to a blood alchol test when directed according to law. Not the same, but a crime none the less.

Failing to divulge encryption keys could fall into the same presedence. Being you are not guilty of the crime, for lack of evidence but guilty of intent. Perhaps guilty of a lesser crime.


For the sake of this argument, you are correct...but technically, as far as the Model Traffic Code and the Colorado Revised Statutes, you are wrong.

Driving Under the Influence is determined by a checmical test of breath or blood alcohol content (BAC or BrAC). You are not legally obliged to take such tests, if you choose not to; don't quote me, but I believe it's akin to the 5th amendment...you right to refuse the tests (without a court order/warrant) is protected under the 5th amendment of the U.S. Constitution.

However, your Colorado drivers license (similar rules in most other of these United States) is issued to you by the Department of Revenue (in Colorado, anyway) with several understandings and agreements. Remember kids, driving is a PRIVILEDGE, not a RIGHT. (Please, PLEASE, some egotistical know-it-all-sumbitch argue this point with me.) When you requested a drivers license, you agreed to several binding conditions to the state. Colorado is known as an "Implied Consent" state. That phrase should have you freedom-libertarian-freaks quaking in your boots, if you don't know what it means. What the DOR's intent is that if you are driving a motor vehicle in the State of Colorado, by operating it on the public roads you have already consented to have your blood or breath tested by a Colorado Peace Officer, if s/he suspects you are under the influence. Now said officer still needs reasonable doubt/probably cause, depending on the circumstances (or you can whallop him with a whole ton of nastyness he doesn't want to deal with...slander...false arrest...etc.) However, if you refuse a chemical test, when legally directed to take one by a Colorado Peace Officer, you WILL be handed your ass, administratively: Automatic license revocation for 90 days to 3 years, depending on your history and the circumstances. They take the license away and staple it to the offense report, in most jurisdictions. And the State will tell you 'tough shit' when you whine about it.

So in truth Road_Closed, it's not a matter of your refusal to take the test being evidentiary of intoxication...but your argument is legitimate as a simple comparison. The existence of software with the purpose to obfuscate data can be shown to imply certain attitudes or positions in that manner, in a legal preceeding.

Ok, back to the normal thread. ;)

[IKnowNot]

Well, I still don’t see the correlation but since I already went over the original topic maybe I should just touch on this a bit. DISCLAIMER: This is my opinion only. Check with all applicable laws, court rulings, etc. which may apply to your area.

My state too has a similar “ Implied Consent” law. But that “ Implied Consent” only refers to breath tests. Refuse to take the breath tests and you are issued a separate summons for failing to do so. Any fines, license revocations, jail time etc. as a result of that failure are in addition to any fines, license revocations, etc. for the summons issued for driving while under the influence. So if you are convicted of both you get hammered twice. If you manage to be found not guilty of driving while impaired you can still be found guilty of refusing to take the breath tests.

Now here is where it gets a little tricky, and maybe a little too technical for many. Lets suppose you refuse to take the breath tests. You are issued a summons for that refusal and think, oh well, at least I’ll beat the driving while impaired.

Maybe, maybe not.

Leaving out the experience of the officer, their training, credibility, observations, etc. which could be used to convict a person even if there are no breath samples available to the court let us look at something else.

The” Implied Consent” law in my state only applies to the taking of breath samples, not blood or urine . Last I checked most state Supreme Courts I know of, and the U.S. Supreme Court have ruled that blood and urine are not testimonial in nature and thus ( specifically referring to the Federal Constitution issue here ) is not subject to the Fifth Amendment protection ( similarly to State Constitution's provisions).

Because of the volatile nature of the evidence ( the body breaks it down over time and the evidence is lost ) a person can not refuse to give blood or urine samples. Supreme Courts have ruled that if a person resists they may be strapped down and blood taken by force, catheters may be used to extract urine, :eek: etc. ( although most sane Courts require it be done in a medically approved manner. )

See where I am going with this?

O.K. For the cynics.
Q. Why aren’t breath samples considered “ none testimonial in nature” like blood and urine?
A. They are.

Q. Then why are the “ Implied Consent” laws necessary?
A. Just think about that for a moment. The term “ shocks the conscious “ comes to mind here. I can just see a police officer on the side of the road, a hose taped to a persons mouth who is lying on the ground and the officer jumping up and down on their chest to retrieve a breath sample. That just won’t work ( at least not where I live! )

To tie this in with the failing to divulge encryption keys: if, in the case of taking blood or urine samples, someone were to fight so hard even when strapped down to make it impossible to take the samples safely that person could be charged with destruction of evidence ( as they know the evidence will disappear with time. ) If someone were to withhold encryption keys they could possibly be charged with
a) withholding evidence
b) contempt of court
c) obstruction of justice ( or law, depending on the wording of the applicable statutes )

and maybe other offenses. ( I’m under the influence now, so I may miss some things. )

BTW, the part of the U.S. Fifth Amendment right referred to here is known as the right against self-incrimination, founded, in pertinent part: ... nor shall be compelled in any criminal case to be a witness against himself ... .
To my understanding that refers to being forced ( compelled ) to answer questions ( testify ) at a hearing or trial which may tend to incriminate ones self. It does not refer to a record ( written, recorded, or any other physical evidence etc. ) someone made at some previous time just because that person is the subject of said hearing, trial, etc.

All of the above assumes that the officer had what is know here in the U.S. as Probable Cause that an offense has been committed. What is that? I’m not that drunk to try to explain it!

I hope you’ve enjoyed reading this. Or maybe it has sparked within you an outrage with a sincere desire to discredit my ranting. To do so would mean you would have to research these topics, which would mean you would have to learn something, and thus, I have won anyway! ;)

As catch would say,

cheers,

[zencoder]

Colorado has the 'double whammy' too. It works slightly differently, but same end result. If you consent to the breath test and are found to have a BrAC of 0.08% (it was 0.1% in my day, gone down since) you are also charged with DUI Per Se. In Colorado, DUI is based solely on the officers judgement of your capability to drive in the current condition, regardless of actual BrAC levels. Therefor, a 119 pound floozy could run over a person while having a BrAC of only 0.068%, and still be charged and properly convicted (if so found) of DUI.

In CO, DUI is solely a judgement of the drivers condition as observed by the office. This requires a lot of boring training (I used to teach it...I'd rather scratch out my eyeballs than do it again), and DUI law is one of the most lucrative practice areas in this state. Cross examination can leave you feeling like a traitor to your country. :( In counterpoint, DUI Per Se has nothing to do with driver capabilities or apparent condition. It is solely factual; chemical analysis of blood or breathe (urine is not used, or at least was not in my time) determines the content to be at or above the legal limit.

[IKnowNot]

... (urine is not used, ...

The driving while impaired statues here are not restricted to just alcohol. ;)

[gore]

Michigan state police did a test similar :

They let some people get drunk, then under a closed area, drive to a destination and the drunks couldn't drive.

The people who were stoned not only made it to their destinations without hitting anything they drove more slow and stayed safe.

I've driven on Oxy Contin. It was the same time I learne dhow to drive a stick. This may seem like it's easy but I know of people who can't even walk on that drug let a lone learn how to drive a stick shift for the first time where the ****ing stick barely worked and the gears slipped, meaning if you were in first, it stalled out most of the time when you tried driving after being at a stop sign.

If that wasn't enough cops were everywhere and even though I had never driven a stick and the thing ****ed up a lot, I did it on that drug without a problem.

Then again most people here know how Opiates affect me. I'm hoping and Praying that one day the police can do another test for people on the road and I can sign up to do my driving test on Morphine. A drop can put someone to sleep after a SURGERY.

I however can drive and concentrate better than when I'm not on anything.

I won't drink and drive though, that DOES affect my motor function. My best friend won't eother. We are "Punk ass kids" but at least we are responcible drivers which if anyone here has EVER driven in Detroit knows that takes a lot.

So if you've never driven on roads where semi trucks run red lights and don't care, heh, shut your mouth.

Thinking about it harder a lot of things I know how to do I learned on an Opiate.It makes learning easier for me. And I know someone who posted on this page would benifit form it as well, as they have ADD almost as bad as I do.

Yesterday sucked big ****. I had not even a half a pill for all day long, I couldn't concentrate for shit, I pretty much did nothing all day, I couldn't. Just like when I was in high school and had never done these Opiates. I couldn't do shit then either.

[jinxy]

To continue the analogy, in the UK. Failing to provide a breath sample is a crime and carries the same sentance as driving with an alcohol level above the legal limit. Statutory one year ban, minimum (if alcohol level is eccessive) sentance can be custodial. Second offence within ten years carries a statutory three year ban minimum.

You can be breath tested even if you are not driving and if found to be over the limit all the above applies. This is where the intent comes in. If you, for instance, get something out of your car and you have the ignition key in you posession, having had enough alcohol to but you over the limit and a policeman sees you, he can take a breath specimen. The laws point is as you have access to your vehicle while incapable there is an implied intent to drive. The burdon of proof of intent is shifted from the procecution to the defence.

This is in much the same way as the removal of the write to silance, which we Brits no longer have. Failure to reply when questioned can now be looked on as admission of guilt.

[nihil]

/off topic.............but jinxy asked for this:


"You have the right to remain silent, but anything you say will be taken down and may be used in evidence against you"

"Please don't hit me again sergeant"

:p :D

[allenb1963]

Too bad there's no "Driving while STUPID" statute....the roads would be much less crowded around here.

[Striek]

Holy sh** if the government tried to remove the right to silence here they wouldn't be sitting for much longer. They'd fall within a week. People would be willing to start a civil war here over that.

For such a proud people (i.e. unlike the French), you Brits give in too easily.

[jinxy]

For such a proud people (i.e. unlike the French), you Brits give in too easily.

If you think the French are not a proud nation, you are incorrect.......................They have just voted against the european constitution.

We, of course, have kicked their arse more times than we can count, but they are still the only nation to successfully invade us, if you ignor the Romans ( and what have the romans ever done for us) :D

[gore]

You have the right to remain silent, anything you say can and will be misquoted and used against you.