Brave New Technology


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The case involves a computer seized by the government from defendant Ramona Fricosu in 2010 in the midst of a financial fraud investigation. They had a court-issued warrant to do so. As noted by Wired Magazine, full disk encryption “is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power.”

Ms. Fricosu contends the decryption amounts to self-incrimination since the government would be unable to obtain the evidence used against her unless she voluntarily gives them access to it by providing her personal password. Assistant U.S. Attorney Patricia Davies countered with five arguments. First, the government knows the encrypted drive exists and has “sound bases” to believe the encrypted flies contain relevant information. Second, Ms. Fricosu’s “voluntary conduct” has linked her to the encrypted files, having “discussed the Subject Computer with co-defendant and ex-spouse Scott Whatcott while he was incarcerated (and the telephone call was being recorded) and referenced specific information relevant to the case that the Subject Computer contains.” Third, the government already has the drive and only wants Ms. Fricosu to “authenticate” what’s on it. Fourth, the government only wants what is on the drive, not Ms. Fricosu’s password. Fifth, the files do not warrant Fifth Amendment protection because they were created “voluntarily and prior to the execution of the search warrants.”

U.S. Attorney Davies further contended that an unfavorable ruing by the judge would be “a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Judge Blackburn gave Fricosu until Feb. 21 to produce an unencrypted hard drive. Yet at the same time he added even more confusion to the mix, noting that the government is prohibited “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.” Perhaps any other prosecution is what the judge intended to mean. Phil Dubois, Ms. Fricosu’s attorney, will seek a stay in the ruling, and possibly appeal the decision as well. “I think it’s a matter of national importance,” he explained. “It should not be treated as though it’s just another day in Fourth Amendment litigation.”

Thus, we have two court decisions seemingly at odd with each other, with the latter likely to end up in the Supreme Court as well. Both concern the ever-increasing ability of the government to intrude into spaces that were once impossible to penetrate prior to the advance of technology. In a society where the reasonable expectation of privacy is becoming far less reasonable, it is critically necessary to define the limitations of technological invasions of privacy. Here’s hoping the courts, or in this instance Supreme Court at least, continue to err to the side of caution.

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  • sedoanman

    Aside from the trespass, what would the legal difference be between using a GPS tracker and actually following the suspect around?

    • NAHALKIDES

      I haven't read the per curiam opinion, but it sounds like the point it was making was that there was no difference – government agents can follow a suspect around by sight on the public streets whenever they want.

  • NAHALKIDES

    The Colorado case is the more troubling. The fifth amendment has always been interpreted to mean that the accused does not have to produce books, papers, or records that could incriminate him. Of course, these items may be seized under a proper warrant.

    To see the error in the Court's reasoning, imagine that a search warrant has been issued for a man's notebook, which he could not be compelled to produce. The notebook could be seized as evidence, and the contents, if legible and unencrypted, could be used against him. But if the contents were encrypted or simply illegible, the defendant could not be compelled to decrypt or interpret them in court, and the police would simply be out of luck.

    This one's likely to be overturned, although the law on search and seizure has become so murky within the past 60 years or so that no one can be certain.

    • sedoanman

      I know it was only a movie, but a recent re-air of a "Law and Order" episode had the detectives outside a suspect's apartment and waiting for a search warrant. The suspect arrived before the warrant, and to prevent him from disposing of the evidence [video tapes], one of the detectives broke a tooth-pick off in the key slot to delay the suspect's entry. The warrant arrived a few minutes later, and they seized the incriminating evidence. By some logic that escaped me, the judge ruled them inadmissible.

  • sideline

    Justice means 'the quality of being just; righteousness, equitableness, or moral rightness'.

    When judges, law makers, and law enforcers forgot this and just focus on wordings and technical stuff. The 'justice' for good law abiding citizens will becomes 'punishment' for them.