Colorado Woman Ordered to Decrypt Laptop in Bank Fraud Case

[hey_moe]

I know some in here would totally disagree with what the court system has ordered her to do. To me under these circumstance I feel the courts are right in this case >> http://www.dailytech.com/Colorado+Woman+Ordered+to+Decrypt+Laptop+in+Bank+F raud+Case/article23853.htm what do you think?

[rayrey10]

I agree that the court was right. Imagine if criminals could hide behind encrypted information on their computers. They would never prosecute another child pornography case.

[Daveroo]

well im usually wrong when it comes to opinions on this board..but i think the court is right,this woould open up an entire new ellement to criminal activity...the criminal minded people look for anything to use to be crooked....ofcourse in thier little minds its "creative income" but then ive known several people you broke the law often because they had a better life in jail than they did out on the street....personally i never could understand that...but oh well

[rhumbaflappy]

All citizens and visitors to the United States have the constitutional right not to incriminate themselves. The judge is not only wrong, but compliance with the judge's order will undoubtedly lead to a valid appeal and an overturn of any convictions using that evidence. This judge has really screwed the prosecutor's case, and any future cases involving this evidence.

The end result of this nonsense will be yet more of the taxpayers money foolishly spent chasing unprosecutable crimes. All this while our prisons are bulging with criminals. Let the bank file a non-criminal lawsuit to recover any funds... there is no 5th amendment for non-criminal cases. Then they can jail the woman for contempt of court, and just let her rot, without damaging any legal discovery from the harddrives to be used in future cases. We have plenty of violent criminals waiting to get into jail... why not focus on them, and save some money in the process?

And seriously... if you were the woman, wouldn't you just destroy the harddrive if you get your hands on it? Whoops? As they say "Come on, man!"

Dick

[Tako_Kichi]

The way I read that report they are going to let her take the laptop away and then come back when it's been un-encrypted. Are the authorities completely insane!? :banghead:

I would be demanding that she hands over any and all passwords while the laptop remains in the court's possession. There is absolutely nothing stopping her from going home, opening the laptop, swapping out the HD for a new one, putting in a new OS and then taking it back as clean as new penny. :isadizzy:

[robert41]

Hard one to think about. It is one thing to have your computer confiscated, another to be forced to provide the court with possibly incriminating evidence.

[Meshman]

I agree with Dick. IMO, it's a clear violation of the 5th amendment.

Suppose it's not a computer, but some other type of alleged criminal act and you are the suspect. They throw you into jail and tell you that you're staying until you give them the location of the evidence they think will prove their case. I don't think so! But because it's a computer legal precedence no longer applies? Or is it because she is accused of bank fraud and therefore must be the kingpin for the GEC?

Please proceed carefully and very slowly, if you're willing to have the constitutional protections (my constitutional protections!) stripped away, bit by bit.

[Ivan]

I believe the 5th Amendment DOES protect this woman against self incrimination.

Imagine if a judge were to determine that an accused person MUST tell the authorities how s/he disposed of the murder victim. If the accused does not comply, then leave them in jail unconvicted until they WILL comply. This cannot be the only way to gather evidence.

I believe the same thing applies here. The authorities who have legally confiscated the laptop may use it as evidence if they wish, but they should not be able to force anyone to self incrimination.

- Ivan.

[Ivan]

Hey Meshman,

Are we thinking EXACTLY the same thing or what????

- Ivan.

[cheezyflier]

whether it's legal or not is of little consequence. the government will do what it wants, and to hell with what anyone thinks of it.

[Kiwikat]

I believe the 5th Amendment DOES protect this woman against self incrimination.

Imagine if a judge were to determine that an accused person MUST tell the authorities how s/he disposed of the murder victim. If the accused does not comply, then leave them in jail unconvicted until they WILL comply. This cannot be the only way to gather evidence.

I believe the same thing applies here. The authorities who have legally confiscated the laptop may use it as evidence if they wish, but they should not be able to force anyone to self incrimination.

- Ivan.

Well said. :salute:

[Naismith]

The way I read that report they are going to let her take the laptop away and then come back when it's been un-encrypted. Are the authorities completely insane!? :banghead:

I would be demanding that she hands over any and all passwords while the laptop remains in the court's possession. There is absolutely nothing stopping her from going home, opening the laptop, swapping out the HD for a new one, putting in a new OS and then taking it back as clean as new penny. :isadizzy:

I agree with you, or "Oh dear your Honor, I accidentally formatted the HD, I don't know what I was thinking, I panicked."

Somehow I think there is something missing in the reportage here.

[Allen]

Meshman and Ivan are right.

If the cops want to know what is on the laptop they can decrypt it them self.

As for "I accidentally formatted the HD" That depends on what is on the HD. If what is on the HD is going to get me more time than the charge of "destroying evidence" than it will be reformatted, microwaved than I would find the biggest magnet I could and leave it on the HD.

[SPman]

I agree with Dick, but cheezyflier is on the mark!

[hey_moe]

Well I guess this 5 amendment will work great for the guys who are into photographing children in the nude and doing sex acts. I don't have any problems with the law grabbing a computer and getting inside of it to see all the evidence they need to convict the person or persons involved. This is what is wrong with our country now. The victims are the criminals and the criminal is the ones who's rights are protected.I feel when you break the law like this you have just given up all your rights. Look what happen here in Hampton >> http://www.dailypress.com/news/crime/dp-nws-murder-charges-dropped-20120124,0,4538185.story this is the second case that was dropped this month because they didn't have enough evidence to convict these guys. They know this guy did it but they don't have the proper evidence to prove it. One of the officers questioning him said he just laughed and smiled when questioning him about the murder he committed. Look at the OJ case...it goes to show you if you have money you can get away with anything.

[Meshman]

...This is what is wrong with our country now. The victims are the criminals and the criminal is the ones who's rights are protected.I feel when you break the law like this you have just given up all your rights.

I'll respectfully disagree with your assessment, Moe. The rights that are being protected are for those that are innocent until proven guilty, beyond a reasonable doubt. Once they have had their day in court and have been found guilty of a felony they do lose many of their rights. Our judicial system is built upon the notion that a person is innocent, no if's and or but's, until proven guilty in a court of law. If this wasn't the case, we would end up like too many other countries where if someone thinks something, it must be so. Proof is not needed, so throw them into a jail. Luckily for you and me, we don't live under such a format. And for that I'm grateful and would continue to advocate that we protect the rights we have. Because once you start chipping away at these rights you run the risk of something coming along that will bite you in the rear. And you might start wondering where the people are that might be an advocate for your "now lost" rights.

And don't even get me started on the dummies on the O.J. case. They couldn't spell DNA, much less understand what it is...

[rhumbaflappy]

If they leave her alone with the harddrive and she has access to a hammer, she will destroy the evidence... and what can the judge then do? Not much. This all seems to be quite foolish. At the very least, she'll wipe the drive, or re-encrypt the encyption, and the data will be gone.

Just a foolish waste of taxpayers money. Why did the DA take it to court, when they knew they couldn't recover the data? Moronic. Reminds me of the saying "I'll cross that bridge when I get to it"... If anyone thinks that, I guarantee that bridge was crossed a long time ago ( you just haven't realised it yet ). The DA's case was lost a long time ago... he just can't accept it, and is willing to push it to violating the constitution to save his ego.

Dick

[fsafranek]

This judge needs to watch more NCIS. The bust through passwords all the time.
Jeez, too much drama for such a simple task if you have the right tools. :icon_lol:
:ernae:

[TeaSea]

It's an interesting question, but I'm not sure I see the application of the 5th Amendment against self-incrimination. At issue is a physical device. A physical device cannot testify either way. If there is incriminating evidence on the device, the prosecution must still work to prove a direct relationship between the evidence on the device, and the accused. The accused still has their day in court and if asked "is this your information on the PC" may plead the 5th at that time. If the judge does not accept that and through threat, intimidation, or trickery forces the accused to admit to the information on the PC, well that's a violation and a subsequent appeal would likely toss any potential conviction.

To get access to the physical device, the authorities must obtain a warrent. That too is part of due process. They must approach the judge with probable cause to execute the warrent. Aside from a warrent, items obtained in a search in the execution of a warrent are available for subsequent searches. Over 200 years of U.S. criminal law have well established the parameters for executing such searches.

So, I would ask, where in this has anyone's rights been violated? The only thing unique about this device is it has encryption. Encryption is simply software. Are we saying that because it has this particular software package that it's somehow specially protected from a warrent? What if it had FSX on it, would that somehow make it special. Obviously there's a difference, but not from a legal perspective.

Not knowing the particulars of the warrent, looks like the judge is dead on, and no threat to any civil liberties from my perspective.

BTW, we use strong Data Encryption on our DOD systems. I had to send a drive in for forensics a few months ago. I informed the recepient that it had encryption...they said they could "bust right through that", they were after all the experts in the field.

They ended up toasting the drive through repeated efforts attempting to break the encryption. A lot of what you see on TV......just ain't so.

[Kiwikat]

They ended up toasting the drive through repeated efforts attempting to break the encryption. A lot of what you see on TV......just ain't so.

Yup. Anyone with the ability to use google could easily make their data next to impossible to decrypt. It is pretty cool stuff actually.

[Trans_23]

This judge needs to watch more NCIS. The bust through passwords all the time.
Jeez, too much drama for such a simple task if you have the right tools. :icon_lol:
:ernae:
I was just thinking the same thing! HAHA! NCIS has all the trick computers. Who else can solve a crime in less than an hour? It is laughable. I think the producers got their ideas from watching Ironman.

[Allen]

no threat to any civil liberties from my perspective.

Yes it is.

This is no different than making some one hand over a safe combination or decrypt a piece of paper they wrote. The warrant only covers the physical device. The suspect dose not have to help the cops in anyway. Give the cops a safe combination or decrypt a piece of paper one wrote under threat by cops or judge is self incrimination. Decrypting the HD by order of the judge for the cops is self incrimination too.

[TeaSea]

Actually Allen, your example of a safe is a good one and illustrates the case very well. However in the execution of a legal search, you may be compelled to open the safe. If you do not, you may be held in contempt and jailed.

Remember, the courts and police have to go through a separate process to obtain authority for the search. Depending upon the probable cause, the judge may lay out specifics for the search which include opening all safes or secure ledgers. That in itself is not "self incrimination". As accused, you have not been denied due process.

Once the police have legal authority to execute a search, you as a citizen DO NOT have a right to interfere with, resist, or other wise attempt to deny the right or authority of the court to execute that search. Any attempt to do so through extra-legal means may open you to prosecution for obstruction, contempt, or even assault if you decide to physically or verbally abuse officers of the court in carrying out the search. You may challenge the search later in court, or even seek an injunction to restrain the police from executing the search (assuming you can establish jurisdiction of another court in the matter and have the time to do so) but you may NOT at execution. Once probable cause has been established that a premises, object, or record is incidental to a crime, the courts have wide authority to execute a legal search for those items.

On TV, that whole process is usually reduced to "I got a warrant"...in fact there's a little more to it.

Again, the prosecution must still prove that any evidence obtained from said safe pertains to your prosecution and you as potential defendant have an opportunity to argue against or suppress any evidence thus obtained that you perceive as detrimental to your case. In seeking to suppress such evidence, you must establish that the evidence was illegally obtained or not germain to the case. This is normally a tall order when the original warrant states the parameters of the search and the evidence falls within those parameters, but it is done all the time. Indeed, often the first step of a defending attorney will be to suppress any and all evidence against the accused. Courts know this, which is why that "I got a warrant" process is alluded to and "probable cause" is such an important concept.

Respectfully there is no impact on civil liberties from what we know here, and there is no violation of the 5th amendment. And for those who will scream "innocent until proven guilty" let me remind you, no one has said otherwise at this point in the process. The fact that you're "innocent until proving guilty" doesn't mean the courts cannot go about establishing your guilt. What it means is that the burden is on the prosectuion to establish your guilt....nothing more.

Were this case not involving a computer and the idea of "encryption", it would be pretty straight forward and not particularly newsworthy falling well within the parameters of current U.S. criminal law.

What we have established for sure however is that I cannot spell warrant consistently.

[OBIO]

The US Supreme Court has ruled that a combination is protected under the 5th because it is an "expression of a person's mind." Under this ruling, no one can be compelled to provide/tell the combination to a safe.

Following that chain of thought, a password to decrypt the harddrive is also an "expression of the mind", because a person had to think up and remember the password used during the encryption process.

This development is so new that it has not been before the high courts, but an "expression of the mind" is an "expression of the mind" in my book.

OBIO

[redriver6]

my question is...if the evidence to her guilt is on the laptop....and they can't get to the evidence...............................then how in the bloody heck did she get arrested in the first place?????????

and......
This judge needs to watch more NCIS.

actually no.......too many people are basing their opinions of criminal justice on TV fiction............never a good idea.

[Allen]

Heaping pile of text.


The US Supreme Court has ruled that a combination is protected under the 5th because it is an "expression of a person's mind." Under this ruling, no one can be compelled to provide/tell the combination to a safe.

Following that chain of thought, a password to decrypt the harddrive is also an "expression of the mind", because a person had to think up and remember the password used during the encryption process.

This development is so new that it has not been before the high courts, but an "expression of the mind" is an "expression of the mind" in my book.

OBIO

I think OBIO has you beat TeaSea. Thanks for playing!

With the HD incrypted it dose not interfere with, resist, or other wise attempt to deny the right or authority of the court to execute that search. They took the HD from her than couldn't read it. She did noting wrong. Now that want her to give them the combination that is protected under the 5th to unlock the HD they alreay took from her.

[TeaSea]

No, Mr. Obio, whom I love and respect as a human being, is incorrect. The SCOTUS has made no such determination, but the confusion is understandable.

The idea of "contents of his own mind" does indeed appear in a safe case (John D. v. United States -- 1988) in which a defendant was compelled to provide combinations of safes protecting various records. The defendant claimed this violated his 5th amendment rights, and after some time SCOTUS agree to review. Essentially SCOTUS held up the conviction with a very clear majority. The dissenting opinion was written by Justice Stevens, who asserted that "He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed". Interesting, because the Justice seems to indicate that if you have a key lock you can be compelled, but not if it's a combination lock....okay, that's pretty odd, but not germane to our discussion.

Regardless of the dissenting opinion, the court ruled you gotta hand it over....that's not been overturned, it still stands as the law of the land. The confusion comes in a subsequent case.

Remembering that dissenting opinions are important SCOTUS cites this dissent in a review of a Grand Jury Subpeona (U.S. v. Hubbell--2000) coming out of the Whitewater investigation. Please note the wording...."It was unquestionably necessary for respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox." This is the citation Mr. Obio is making reference to, however, this is only part of the story. Note that SCOTUS is using the safe as an example to make a point. This is known as a "Dicta" which is simply the musings of the court in an attempt to explain an issue. It has no legal binding and sets no precedence. So, first case set the precedence, second case fails to overturn that precedence (the case actually revolved around the assembly and categorization of several thousand documents, which Hubbell was required to assemble, sort, and produce to his detriment which is where the "reference to his own mind" comes in-- let us not weep for Hubbell or his mind however, the Feds had him dead to rights on other charges, and he copped a plea).

Subsequent to both these cases, in 2009 the Federal Review Court in Vermont overturned a lower court that had determined compelling an accused person to provide an encryption password to a computer as part of a lawful search was a violation of their 5th Amendment rights (re Bucher). The U.S. case was that the encryption password itself was immaterial, it was the contents of the computer that was important. The Review Court agreed and that ruling stands.

So, at this point in time SCOTUS has established that you may be compelled to produce a combination to a safe. You may also be compelled to decrypt a HDD according to the last Federal Review case involving this issue. Our accused must provide access to the drive IAW current law. Her rights have not been violated.


Next?

[TeaSea]

BTW, I am not a lawyer, but the law is the best spectator sport in the country and I'm surrounded by lawyers.

[Allen]

I do not believe he can be compelled to reveal the combination to his wall safe


I do not believe he can be compelled to reveal the combination to his wall safe

I do not believe she can be compelled to reveal the combination to her hard drive.

Sounds the same to me.

Next!

[TeaSea]

I do not believe he can be compelled to reveal the combination to his wall safe

I do not believe she can be compelled to reveal the combination to her hard drive.

Sounds the same to me.

Next!

Don't misunderstand, I personally would certainly appeal on that were I the accused and convicted and had no other appelate option. But the precedence already established tells us that it will likely not proceed too far, so it would certainly be my last choice for appeal. Unless there is some other compelling justification, the presiding appeals court will not likely accept it.

Also, don't miss the slight distinction as it is very important....you may not reveal the combination or the password, but YOU WILL open the safe and the HDD. Not to do so puts you in contempt. That's where we are at this point, and not likely to change.

So again, our accused has not had their civil rights violated.

And I'll give anyone else the last word as I am done....think of the FSX I could have been doing!

[Allen]

One bit of info is missing from the first link.

The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. 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.”

http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/ (http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/)


Another words they cops and judge are threating to put the woman in jail if she don't give them what they want even though she can't be prosecuted from any thing found on the drive. They know she can't be prosecuted from any thing found on the drive or it would be tossed out as they would be breaking her 5th to do so.

The cops and judge are threating United State citizen like they are the mob!

[rhumbaflappy]

As far as jailing for contempt of court... destroy the drive and it cannot be unencrypted, and there is then no basis for contempt of court. I'm sure the judge realizes this. No harddrive = no contempt punishment.

He's either humoring an inexperienced DA, or hinting to her to get rid of the evidence, and end the prosecutorial nonsense.