Court rules on encryption

The eleventh circuit court has ruled that defendants cannot be forced to decrypt the contents of their hard drives, as this is in violation of the 5th amendment.

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First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

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http://volokh.com/2012/02/23/elevent...pted-computer/

Very cool.

I take it that this has something about that case were the DOJ is trying to force that lady to hand over her decryption key so that the FBI can examine her HDD to get evidence on her.

And her lawyers are arguing that she doesn't have to hand it over.

That's right. The Eleventh Circuit Court of Appeal is a relatively conservative court that covers the Southeast US.

In my humble opinion it was a very courageous (and correct) decision on the part of the appeals court. It must be very difficult given the underlying nature of the case and the public hysteria that always generates.

It does not apply in a lot of circumstances, as other case law has, and still does demonstrate. Here; if the guy had complied then he would most probably have incriminated himself, as he would have to have known the keys and locations of the files in question?

Obviously, in the case of whole drive encryption, you either have that information or the thing is a damn useless brick? (give ya $10 for it and break it for spares)

Here, I think the aspect that the judges took exception to was that the prosecutors were on a fishing trip that they thought they could slide through on the KP thing.

In the cold light of day it seems to be a BIG FAIL on the part of the law enforcement agencies involved?

Here we have a guy who is involved with KP distribution on You Tube!!! :shocked:

Whaaaatt???

So, they track him down and trace him to an hotel (good, solid, traditional police work there +1 to all concerned).

He has two lackluster laptops, and FIVE external HDDs totaling 4,500GB of external storage??????????????????

Hell, the best I ever managed was 1920GB............... and that was when a mate gave me 6x320 GB PATA drives lying around from a previous server! (local hotel ;))

But then things go wrong, because the KP isn't there for all to see. There are these encrypted sectors (containers) on the drive.

The "alleged" perp decides he will go for the fifth and contempt, rather than hand it to them on a plate.

He won because they had no reasonable evidence that there would be any evidence in the first place. In other cases this has been different, like lawyers, accountants, businessmen must keep certain records to function.............. then it's a fifth of Seagram's rather than the amendment :drink:
I think the ruling favours the private individual, rather than professionals, or the employees of corporations or institutions.

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I take it that this has something about that case were the DOJ is trying to force that lady to hand over her decryption key so that the FBI can examine her HDD to get evidence on her.

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If that's the real estate mortgage loan fraud case then the FEDs have managed to crack the password. (Ramona Fricosou).

It isn't quite the same as it was whole disk encryption using PGP Desktop. Obviously, if you forget the password to that then the laptop is a brick :eek:

Also, the prosecutors had other evidence that the laptop did or had contained evidence which brings in the "forgone conclusion" doctrine that negates a fifth amendment plea.

In the case this thread is about, the investigators found areas on the 7 hard drives that looked as if they might be encrypted data lockers.

Given the nature of the encryption software that might have been used, there is no way to distinguish between random crap that might come from a secure erase, an empty data locker, and a data locker containing data............. that's how the stuff works; it disguises itself.

So, as there was no other evidence to support the existence of relevant encrypted data, the fifth amendment came into play. In chess terms it was a pretty poor endgame on the part of the prosecution.

This wasn't clever lawyer stuff either.............. the guy represented himself.