Wednesday, January 25, 2012

Judge Rules Data on Hard Drives Not Protected

Judge Robert Blackburn, a federal judge in Colorado, ruled Tuesday that a Peyton, Colorado defendant had until the 21st of February to decrypt the hard drive of a laptop computer or face contempt of court and other potential consequences. 

What makes this unusual is that in other cases across the United States a person could "plead the Fifth" to refuse to answer a questions because the response could provide self-incriminating evidence of an illegal act. In this case, the woman is on record speaking about how her laptop contained incriminating evidence.

That aside, the ruling also flies in the face of previous rulings in the US have ruled that passwords would not have to be surrendered allowing individuals to protect themselves from self-incrimination. A ruling supporting this thought was provided by a federal judge in Michigan in March 2010. On the other hand, across the county in Vermont a year earlier, a federal judge ordered a defendant to unencrypt his files which in turn led to his conviction.

Questions of whether a defendant can be legally required to surrender his password or passphrase has led to rulings on both sides, but has yet to reach the Supreme Court. A common view is that if prosecutors can subpoena access to homes, cars, other lockable objects, why it should be any different from hard-drives or other encryption media. The opposing view is that the fifth amendment protection extends to defendant's mind prohibiting them from having to reveal the password or passphrase to decrypt the media.

In the case of Judge Blackburn in Colorado, he ruled that forcing a defendant to decrypt a laptop so its contents can be inspected is essentially the same as producing any other type of evidence. In this case, the defendant is not required to write out or speak her password, only to enter it into the laptop. The prosecution in turn would still need to review and identify whether any illegal activity took place once the data is unencrypted.

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