Judge orders defendant to decrypt PGP-protected laptop

[Ray Dillinger]

On Tue, 2009-03-03 at 21:33 -0500, Ivan Krsti? wrote:

> If you give me the benefit of the doubt for having a reasonable  
> general grasp of the legal system and not thinking the judge is an  
> automaton or an idiot, can you explain to me how you think the judge  
> can meet the burden of proof for contempt in this instance? Surely you  
> don't wish to say that anyone using encryption can be held in contempt  
> on the _chance_ they're not divulging all the information; what, then,  
> is the other explanation?

The law is not administered by idiots.  

In particular, the law is not administered by people who are more 
idiotic than you.  You may disagree with them, or with the law, 
but that does not make them stupid.

On the one hand there are (inevitable) differences in profile
between a partition that sees daily use and a partition that 
doesn't.  If a forensics squad had a good look at my laptop, 
they'd see that my (unencrypted) Windows partition has not been 
booted or used in three years, whereas file dates, times, and 
contents indicate that one of the other partitions is used daily.

If he decrypts a partition that clearly does not get used 
frequently, and more to the point shows no signs of having been 
used on a day when it is known that the laptop was booted up,
then he is clearly in violation of the order.

More to the point, you're arguing about a case where they 
have testimony from multiple officers who have *SEEN* that 
the images are on the computer, where both defense and 
prosecution agree that they do not enjoy fifth-amendment 
priveleges, and where the testomony of multiple officers 
gives the partition name ("Z drive") in which the images 
were found.  If the decrypted partition does not match in 
these particulars, and especially if it does not show any 
evidence of usage while the laptop is known to have been 
powered up during the initial search, then the defendant 
is clearly in violation of the order. 

Now, I think there is a legitimate argument to be made about 
whether the defendant can be compelled to *use* a key which 
he has not got written down or otherwise stored anywhere 
outside his own head.  It's generally agreed that people can't 
be compelled to produce or disclose the existence of memorized 
keys, but can be compelled to produce or disclose the existence 
of any paper or device on which a key is recorded.  But 
regardless, if the order to use the key is considered legit, 
then failure to comply with the order (by using a different or 
"wrong" key, unlocking a different volume) is direct violation 
of a court order.  People go to jail for that.

Keep in mind that the right to be secure from search and seizure 
of one's documents has always been subject to due process and 
court orders in the form of search warrants.  The right to privacy 
is not an absolute right and never has been, and obstructing the 
execution of a lawfully served warrant is not a viable strategy
for staying out of jail.

				Bear
            (neither a lawyer, nor, usually, an idiot)


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