Re: Encrypted laptop poses legal dilemma

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Denning, Dorothy (CIV)" <dedennin () nps edu>
Date: February 21, 2008 6:10:33 PM EST
To: <dave () farber net>, "ip" <ip () v2 listbox com>
Subject: RE: [IP] Encrypted laptop poses legal dilemma

Dave,

There was a case with some similary several years ago. This is exerpted
from my 1999 paper "Hiding Crimes in Cyberspace" (full paper at
http://www.nps.edu/faculty/dorothydenning/):

In People v. Price in Yolo County, California Superior Court prosecutors
successfully compelled production of the passphrase protecting the
defendant's PGP key. In this case, however, the key was not sought for
the purpose of acquiring evidence for conviction, but rather to
determine whether the defendant's computer should be released from
police custody. He had already been convicted of annoying children and
wanted his computer back. The police argued it should not be released as
there was reason to believe it contained contraband, specifically
PGP-encrypted files containing child pornography. This determination was
based on the existence of a pair of files named "Boys.gif" and
"Boys.pgp" (when PGP encrypts a plaintext file, it automatically gives
the ciphertext file the same name but with the extension ".pgp").[7]

The defendant was unsuccessful in arguing a 5th Amendment privilege. The
prosecution argued that the contents of the file had already been
uttered and, therefore, were not protected under the 5th Amendment. As
long as prosecutors did not try to tie the defendant to the file by
virtue of his knowing the passphrase, no incrimination was implied by
disclosing the passphrase.

To handle the passphrase, a court clerk was sworn in as a special
master. An investigator activated the PGP program to the point where it
prompted for the passphrase. He left the room while the defendant
disclosed the passphrase to the special master, who typed it into the
computer. The investigator was then brought back into the room to hit
the Enter key and complete the decryption process. As expected, child
pornography fell out. The judge then ordered the computer, its
peripherals, and all diskettes destroyed. The defendant argued that the
computer contained research material, but the judge admonished him for
commingling it with the contraband.

[7] Information on this case was provided by Fred B. Cotton of SEARCH
Group, Inc. Cotton was the investigator who activated the PGP program on
the defendant's computer.

Best,
Dorothy
________________________________________
From: eekid () aol com [eekid () aol com]
Sent: Thursday, February 07, 2008 11:55 PM
To: dfarber () cs cmu edu; David Farber
Subject: Encrypted laptop poses legal dilemma

An interesting yet sick case.

Jerry


http://news.yahoo.com/s/ap/20080207/ap_on_re_us/computer_privacy


"But when they tried to examine the images after his arrest, authorities
were stymied by a password-protected encryption program.
Now Boucher is caught in a cyber-age quandary: The government wants him
to give up the password, but doing so could violate his Fifth Amendment
right against self-incrimination by revealing the contents of the
files."

"Experts say the case could have broad computer privacy implications for
people who cross borders with computers, PDAs and other devices that are
subject to inspection.:"
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