Woman Ordered to Decrypt Laptop in Bank Fraud May Have "Forgotten

[hey_moe]

And the hits just keep coming in>>> http://www.dailytech.com/Woman+Ordered+to+Decrypt+Laptop+in+Bank+Fraud+May+ Have+Forgotten+Password/article23947.htm

[rhumbaflappy]

"If she's unable to decrypt the disc, the court cannot hold her in contempt."

As her attorney states... Maxwell's silver hammer would ensure it could not be unencrypted, hence no jail.

Dick

[Allen]

http://i180.photobucket.com/albums/x40/Blood5000/Trigun/gif011.gif

The judge and DA are out on a breaking limb. They assume that she put the encryption on the drive. The can't prove she put the encryption on the drive or knows the password/passcode. They can't prove she lying when she say she forgot the password/passcode and the password/passcode and if she is forced by threat of jail time to give the password/passcode they broke her 5th amendment.

If they force her to provide the passcode and then convict her based upon evidence found in the computer the whole trial will be thrown out on appeal.

[TeaSea]

Not likely Allen, for reasons I have already pointed out to you. The law just don't say that.....she cannot claim the 5th in this case. It simply does not apply and based on current rulings by the SCOTUS, the judge and prosecutor are on firm ground.

However, I do agree that it will be very difficult to prove otherwise if she simply claims she cannot remember the password. More to follow, I'm sure.

[Allen]

That is not the law of the land. The U.S. Supreme Court has NOT directly addressed the questions of safe combinations let alone a hard drive but past cases say that this judge and DA are breaking her 5th.


http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/

[rhumbaflappy]

It seriously appears to be a waste of taxpayer's money.

Our courts and jails are already overcrowded. Our governmental budgets are horribly violated. Why pursue this case? Aren't there more dangerous criminals to spend the public's time and resources on?

The judge and prosecutors need to reevaluate the situation, and see if they can get out of the foolish corner they have painted themselves into. Put aside the egos and move on to solvable cases that get dangerous criminals off the streets, before your county or state or court runs out of time and money.

Dick

[TeaSea]

That is not the law of the land. The U.S. Supreme Court has NOT directly addressed the questions of safe combinations let alone a hard drive but past cases say that this judge and DA are breaking her 5th.


http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/


Allan, I am aware of the Hubbell case, but the court is simply making referece to another case as dicta (the minority opinion), and makes no statement either way. Subsequent cases involving both HDD's and Safes have disabused the 5th as a case for refusing to open either device. Please read the whole article:

"And, in fact, a federal court in Vermont has found a circumstance in which forcing a suspect to use a password to unlock a computer — as much an instance of pulling something from the suspect’s mind as requiring the suspect to unlock a combination safe — is OK."

So, this is currently the law of the land. Access to devices must be provided and passwords and combinations may not be used as a 5th amendment shield. The provisions of a search warrent can in fact state that you must open the device or be in contempt. The courts don't care what the combination or password is....but you must open the device.

Clearly the defending attorney is aware of this, so it makes sense that he pleads his client has "forgotten" the password. If the defending attorney was comfortable with the 5th amendment plea, that would have been far simpler and preferred tactic as it avoids the risk of subsequent contempt charges. As it stands, the defendant currently still faces a contempt charge if the judge has a reasonable belief the defendant is playing games with the court. Also, the judge does not have to be "convinced" of the defendant playing games with the court, just have a reasonable belief.

And while I appreciate rhumbaflappy's frustration, I do see a reason to continue to pursue. We would not even be at this point unless there was reasonable evidence of a crime. While this a white collar crime, it's still theft. There is no evidence here to suggest that the courts are taking any extraordinary measures to pursue prosecution. While this component is interesting, based on current case law it's quite reasonable. There doesn't seem to be any ego involved, just prosecutors doing their jobs which is what we hire them to do.

There could of course be lots more to this case that we are simply unaware of, but based on the references provided thus far I think the courts should stay the course....my opinion only of course.

[Allen]

The federal court in Vermont is NOT the U.S. Supreme Court. Every one is assuming that federal court in Vermont is right. Until the U.S. Supreme Court says “yes” or “no” don't say it is the law of the land because all it take is one appeal to change it. Look what happen to Prop 8 here in CA, flushed away tell the next court appeal.

I have a feeling that the case in Vermont was not appealed… but I’ll leave that to you to find out.

[TeaSea]

Allan,

The case in Vermont was not appealed. So, you are correct that the SCOTUS has not had a final say on the issue. However, only a few cases ever reach the SCOTUS. That does not mean that the precedence established by the lower courts is not the law. In fact, courts will refer to this case as the established precedence until such time as something occurs that changes the inerpetation.

Is this the case that will do that? I think that unlikely given the recent maneuver to simply claim the defendant has forgotten the password. As indicated, if the defending attorney were at all comfortable with a 5th amendment plea, then that would have been the way to go. It appears to me, from our limited information at this stage, is that the defense has no confidence in that plea.

Let's keep our eyes out and see what happens next.

Oddly enough, I find that I have difficulty remembering passwords after just a few weeks of changing them. Even if I used them daily. I might be inclined to buy the defendant's story.

[SpitXIV]

I agree, i have trouble remembering mine, but she uses hers all the time, I find it a little too handy that
she suddenly can't remember hers.