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Tuesday, February 7, 2012

Ramona Fricosu and Your Privacy...

A while back I wrote about Ramona Fricosu in "Giving Up Your Password: A Fifth Amendment Right?"

Basically she was supposedly involved in mortgage fraud and authorities believed that on her laptop was evidence.  However, the laptop was encrypted.

So the court ordered her to decrypt it.

Recently, however, a new wrinkle has developed.

Ramona may have forgotten the password.

Now this might seem silly if your passwords are always things like "1234" or you wife's birthday.  But these days passwords can be very hard to remember. 

Consider "g7iW3pQzx5tr9."

I know that if I didn't write this one down I would forget it quickly.

Now interestingly no one, at least in the court house, knows what the password is or whether its hard to remember or not.

Not decrypting the password would likely lead to a "contempt of court" issue where Fricosu would be jailed until she complied.

What what if she had indeed forgotten the password?

On the other hand, if she cannot remember the password then the court cannot hold her in contempt.

The question is how would they know?

The judge in the case,  Judge Blackburn, wrote “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.”

Like I wrote yesterday - apparently the only truly private information you can possess is in your head - at least as far as US law enforcement is concerned.

But what does the Fifth Amendment do?  It prevents you from being a "witness against yourself."  The idea being that you cannot be compelled by the court to go onto the witness stand and say "I did it."  Of course, you can do this on your own if you want to, but no court can order it.

But holding private information in your own mind is an exception to the judges comment.  The court accepts that private as in "in your mind" is legally excluded from the reach of law enforcement via the Fifth Amendment.

The reach of the law is viewed a "all powerful" in these cases save for the Fifth Amendment.  And actions such as the destruction of evidence are violations of the law.

If Fricosu's mortgage data were merely in her head the case would be over because it would be inaccessible to the legal system.

The real issue for law enforcement is whether or not Fricosu is simply "pretending" to not remember the password or actually cannot remember.

Another way to think of this is to say that the case hinges on whether or not Fricosu can type in the password to the computer - an act compelled by the court.  But this goes only as far as there is some evidence that something asked for, i.e, the password, actually exists.

Typically a "motion to compel" is used in proceedings where one side is known to be withholding evidence, i.e., there is evidence of existence prior to the motion.  So, for example, I might be withholding a safety-deposit box key in the case of a divorce.  My spouse, suspecting gold doubloons, asks the court to compel me to turn over the key.

If I fail to I can be jailed for contempt.  If I actually had lost the key then the court has recourse in that the bank can be ordered to drill out the box and open it.

Not an option here because the key is not a physical item - its simply knowledge.

There is also a distinction between revealing the password, i.e., as in giving it to the government, and providing the decrypted hard drive contents without ever disclosing the password.  Clearly the latter is what is expect in Fricosu's case.

(However, Fricosu previously disclosed there was incriminating evidence on the hard drive - an act which caused the government to pursue this avenue with her.)

This all leads to some interesting ideas.

For example, if I could somehow make the act of decrypting the drive in accordance with a court order deliver self-incriminating evidence to the court I don't see how it could be ordered.  Suppose that the password on my laptop not only decrypts the drive but also sends an email to my lawyer instructing him to deliver a confession to the court.  My lawyer, previously instructed in the mater, would have to fight the court order as a Fifth Amendment issue knowing that decrypting the hard drive would incriminate me.

Kind of like a Fifth Amendment deadman's switch.

Clearly if the contents of the hard drive were only in my mind the court would not be able to access it.  The question is can I extend what's in my mind in such a way as to offer the "remote storage" the same protections as what's in my mind has?

Another choice would be to split the password into two parts.  You and a partner each memorized your own half.  You instruct your partner to not cooperate with you should you ever be arrested.  Access to the content would require that partner who, without knowledge of the drive's contents, would be required to enter the second portion of the password as needed.  (Obviously if you made this fact public it would be fair game to the court - but let's assume you didn't...)

Could the court require you to reveal who held the other half of the password?

Is the partner a criminal?

Another option would be to create a system whereby each day or week I had to perform some sort of access to the encrypted hard drive via a sequential set of passwords and, if I failed to, the system would simply destroy the encrypted data.  So, once seized by law enforcement, my access to the laptop to trigger the daily sequential password access would cease and the contents would self destruct.

Can using a system like this be "obstructing justice?"

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