I was just thinking the same thing! HAHA! NCIS has all the trick computers. Who else can solve a crime in less than an hour? It is laughable. I think the producers got their ideas from watching Ironman.This judge needs to watch more NCIS. The bust through passwords all the time.
Jeez, too much drama for such a simple task if you have the right tools.
:ernae:
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The Staff of SOH
Colorado Woman Ordered to Decrypt Laptop in Bank Fraud Case
- Thread starter hey_moe
- Start date
Yes it is.
This is no different than making some one hand over a safe combination or decrypt a piece of paper they wrote. The warrant only covers the physical device. The suspect dose not have to help the cops in anyway. Give the cops a safe combination or decrypt a piece of paper one wrote under threat by cops or judge is self incrimination. Decrypting the HD by order of the judge for the cops is self incrimination too.
TeaSea
SOH-CM-2014
Actually Allen, your example of a safe is a good one and illustrates the case very well. However in the execution of a legal search, you may be compelled to open the safe. If you do not, you may be held in contempt and jailed.
Remember, the courts and police have to go through a separate process to obtain authority for the search. Depending upon the probable cause, the judge may lay out specifics for the search which include opening all safes or secure ledgers. That in itself is not "self incrimination". As accused, you have not been denied due process.
Once the police have legal authority to execute a search, you as a citizen DO NOT have a right to interfere with, resist, or other wise attempt to deny the right or authority of the court to execute that search. Any attempt to do so through extra-legal means may open you to prosecution for obstruction, contempt, or even assault if you decide to physically or verbally abuse officers of the court in carrying out the search. You may challenge the search later in court, or even seek an injunction to restrain the police from executing the search (assuming you can establish jurisdiction of another court in the matter and have the time to do so) but you may NOT at execution. Once probable cause has been established that a premises, object, or record is incidental to a crime, the courts have wide authority to execute a legal search for those items.
On TV, that whole process is usually reduced to "I got a warrant"...in fact there's a little more to it.
Again, the prosecution must still prove that any evidence obtained from said safe pertains to your prosecution and you as potential defendant have an opportunity to argue against or suppress any evidence thus obtained that you perceive as detrimental to your case. In seeking to suppress such evidence, you must establish that the evidence was illegally obtained or not germain to the case. This is normally a tall order when the original warrant states the parameters of the search and the evidence falls within those parameters, but it is done all the time. Indeed, often the first step of a defending attorney will be to suppress any and all evidence against the accused. Courts know this, which is why that "I got a warrant" process is alluded to and "probable cause" is such an important concept.
Respectfully there is no impact on civil liberties from what we know here, and there is no violation of the 5th amendment. And for those who will scream "innocent until proven guilty" let me remind you, no one has said otherwise at this point in the process. The fact that you're "innocent until proving guilty" doesn't mean the courts cannot go about establishing your guilt. What it means is that the burden is on the prosectuion to establish your guilt....nothing more.
Were this case not involving a computer and the idea of "encryption", it would be pretty straight forward and not particularly newsworthy falling well within the parameters of current U.S. criminal law.
What we have established for sure however is that I cannot spell warrant consistently.
Remember, the courts and police have to go through a separate process to obtain authority for the search. Depending upon the probable cause, the judge may lay out specifics for the search which include opening all safes or secure ledgers. That in itself is not "self incrimination". As accused, you have not been denied due process.
Once the police have legal authority to execute a search, you as a citizen DO NOT have a right to interfere with, resist, or other wise attempt to deny the right or authority of the court to execute that search. Any attempt to do so through extra-legal means may open you to prosecution for obstruction, contempt, or even assault if you decide to physically or verbally abuse officers of the court in carrying out the search. You may challenge the search later in court, or even seek an injunction to restrain the police from executing the search (assuming you can establish jurisdiction of another court in the matter and have the time to do so) but you may NOT at execution. Once probable cause has been established that a premises, object, or record is incidental to a crime, the courts have wide authority to execute a legal search for those items.
On TV, that whole process is usually reduced to "I got a warrant"...in fact there's a little more to it.
Again, the prosecution must still prove that any evidence obtained from said safe pertains to your prosecution and you as potential defendant have an opportunity to argue against or suppress any evidence thus obtained that you perceive as detrimental to your case. In seeking to suppress such evidence, you must establish that the evidence was illegally obtained or not germain to the case. This is normally a tall order when the original warrant states the parameters of the search and the evidence falls within those parameters, but it is done all the time. Indeed, often the first step of a defending attorney will be to suppress any and all evidence against the accused. Courts know this, which is why that "I got a warrant" process is alluded to and "probable cause" is such an important concept.
Respectfully there is no impact on civil liberties from what we know here, and there is no violation of the 5th amendment. And for those who will scream "innocent until proven guilty" let me remind you, no one has said otherwise at this point in the process. The fact that you're "innocent until proving guilty" doesn't mean the courts cannot go about establishing your guilt. What it means is that the burden is on the prosectuion to establish your guilt....nothing more.
Were this case not involving a computer and the idea of "encryption", it would be pretty straight forward and not particularly newsworthy falling well within the parameters of current U.S. criminal law.
What we have established for sure however is that I cannot spell warrant consistently.
The US Supreme Court has ruled that a combination is protected under the 5th because it is an "expression of a person's mind." Under this ruling, no one can be compelled to provide/tell the combination to a safe.
Following that chain of thought, a password to decrypt the harddrive is also an "expression of the mind", because a person had to think up and remember the password used during the encryption process.
This development is so new that it has not been before the high courts, but an "expression of the mind" is an "expression of the mind" in my book.
OBIO
Following that chain of thought, a password to decrypt the harddrive is also an "expression of the mind", because a person had to think up and remember the password used during the encryption process.
This development is so new that it has not been before the high courts, but an "expression of the mind" is an "expression of the mind" in my book.
OBIO
R
redriver6
Guest
my question is...if the evidence to her guilt is on the laptop....and they can't get to the evidence...............................then how in the bloody heck did she get arrested in the first place?????????
and......
actually no.......too many people are basing their opinions of criminal justice on TV fiction............never a good idea.
and......
actually no.......too many people are basing their opinions of criminal justice on TV fiction............never a good idea.
I think OBIO has you beat TeaSea. Thanks for playing!
With the HD incrypted it dose not interfere with, resist, or other wise attempt to deny the right or authority of the court to execute that search. They took the HD from her than couldn't read it. She did noting wrong. Now that want her to give them the combination that is protected under the 5th to unlock the HD they alreay took from her.
TeaSea
SOH-CM-2014
No, Mr. Obio, whom I love and respect as a human being, is incorrect. The SCOTUS has made no such determination, but the confusion is understandable.
The idea of "contents of his own mind" does indeed appear in a safe case (John D. v. United States -- 1988) in which a defendant was compelled to provide combinations of safes protecting various records. The defendant claimed this violated his 5th amendment rights, and after some time SCOTUS agree to review. Essentially SCOTUS held up the conviction with a very clear majority. The dissenting opinion was written by Justice Stevens, who asserted that "He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed". Interesting, because the Justice seems to indicate that if you have a key lock you can be compelled, but not if it's a combination lock....okay, that's pretty odd, but not germane to our discussion.
Regardless of the dissenting opinion, the court ruled you gotta hand it over....that's not been overturned, it still stands as the law of the land. The confusion comes in a subsequent case.
Remembering that dissenting opinions are important SCOTUS cites this dissent in a review of a Grand Jury Subpeona (U.S. v. Hubbell--2000) coming out of the Whitewater investigation. Please note the wording...."It was unquestionably necessary for respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox." This is the citation Mr. Obio is making reference to, however, this is only part of the story. Note that SCOTUS is using the safe as an example to make a point. This is known as a "Dicta" which is simply the musings of the court in an attempt to explain an issue. It has no legal binding and sets no precedence. So, first case set the precedence, second case fails to overturn that precedence (the case actually revolved around the assembly and categorization of several thousand documents, which Hubbell was required to assemble, sort, and produce to his detriment which is where the "reference to his own mind" comes in-- let us not weep for Hubbell or his mind however, the Feds had him dead to rights on other charges, and he copped a plea).
Subsequent to both these cases, in 2009 the Federal Review Court in Vermont overturned a lower court that had determined compelling an accused person to provide an encryption password to a computer as part of a lawful search was a violation of their 5th Amendment rights (re Bucher). The U.S. case was that the encryption password itself was immaterial, it was the contents of the computer that was important. The Review Court agreed and that ruling stands.
So, at this point in time SCOTUS has established that you may be compelled to produce a combination to a safe. You may also be compelled to decrypt a HDD according to the last Federal Review case involving this issue. Our accused must provide access to the drive IAW current law. Her rights have not been violated.
Next?
The idea of "contents of his own mind" does indeed appear in a safe case (John D. v. United States -- 1988) in which a defendant was compelled to provide combinations of safes protecting various records. The defendant claimed this violated his 5th amendment rights, and after some time SCOTUS agree to review. Essentially SCOTUS held up the conviction with a very clear majority. The dissenting opinion was written by Justice Stevens, who asserted that "He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed". Interesting, because the Justice seems to indicate that if you have a key lock you can be compelled, but not if it's a combination lock....okay, that's pretty odd, but not germane to our discussion.
Regardless of the dissenting opinion, the court ruled you gotta hand it over....that's not been overturned, it still stands as the law of the land. The confusion comes in a subsequent case.
Remembering that dissenting opinions are important SCOTUS cites this dissent in a review of a Grand Jury Subpeona (U.S. v. Hubbell--2000) coming out of the Whitewater investigation. Please note the wording...."It was unquestionably necessary for respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox." This is the citation Mr. Obio is making reference to, however, this is only part of the story. Note that SCOTUS is using the safe as an example to make a point. This is known as a "Dicta" which is simply the musings of the court in an attempt to explain an issue. It has no legal binding and sets no precedence. So, first case set the precedence, second case fails to overturn that precedence (the case actually revolved around the assembly and categorization of several thousand documents, which Hubbell was required to assemble, sort, and produce to his detriment which is where the "reference to his own mind" comes in-- let us not weep for Hubbell or his mind however, the Feds had him dead to rights on other charges, and he copped a plea).
Subsequent to both these cases, in 2009 the Federal Review Court in Vermont overturned a lower court that had determined compelling an accused person to provide an encryption password to a computer as part of a lawful search was a violation of their 5th Amendment rights (re Bucher). The U.S. case was that the encryption password itself was immaterial, it was the contents of the computer that was important. The Review Court agreed and that ruling stands.
So, at this point in time SCOTUS has established that you may be compelled to produce a combination to a safe. You may also be compelled to decrypt a HDD according to the last Federal Review case involving this issue. Our accused must provide access to the drive IAW current law. Her rights have not been violated.
Next?
I do not believe he can be compelled to reveal the combination to his wall safe
I do not believe she can be compelled to reveal the combination to her hard drive.
Sounds the same to me.
Next!
TeaSea
SOH-CM-2014
Don't misunderstand, I personally would certainly appeal on that were I the accused and convicted and had no other appelate option. But the precedence already established tells us that it will likely not proceed too far, so it would certainly be my last choice for appeal. Unless there is some other compelling justification, the presiding appeals court will not likely accept it.
Also, don't miss the slight distinction as it is very important....you may not reveal the combination or the password, but YOU WILL open the safe and the HDD. Not to do so puts you in contempt. That's where we are at this point, and not likely to change.
So again, our accused has not had their civil rights violated.
And I'll give anyone else the last word as I am done....think of the FSX I could have been doing!
One bit of info is missing from the first link.
The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”
http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/
Another words they cops and judge are threating to put the woman in jail if she don't give them what they want even though she can't be prosecuted from any thing found on the drive. They know she can't be prosecuted from any thing found on the drive or it would be tossed out as they would be breaking her 5[SUP]th[/SUP] to do so.
The cops and judge are threating United State citizen like they are the mob!
The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”
http://www.wired.com/threatlevel/2012/01/judge-orders-laptop-decryption/
Another words they cops and judge are threating to put the woman in jail if she don't give them what they want even though she can't be prosecuted from any thing found on the drive. They know she can't be prosecuted from any thing found on the drive or it would be tossed out as they would be breaking her 5[SUP]th[/SUP] to do so.
The cops and judge are threating United State citizen like they are the mob!
rhumbaflappy
Charter Member
As far as jailing for contempt of court... destroy the drive and it cannot be unencrypted, and there is then no basis for contempt of court. I'm sure the judge realizes this. No harddrive = no contempt punishment.
He's either humoring an inexperienced DA, or hinting to her to get rid of the evidence, and end the prosecutorial nonsense.
He's either humoring an inexperienced DA, or hinting to her to get rid of the evidence, and end the prosecutorial nonsense.