{"id":240,"date":"2013-09-09T00:00:00","date_gmt":"2013-09-09T00:00:00","guid":{"rendered":"https:\/\/cyberthreatintelligencenetwork.com\/index.php\/2013\/09\/09\/advances-in-technology-and-protection-of-the-rights-of-the-accused\/"},"modified":"2024-06-23T23:08:39","modified_gmt":"2024-06-23T23:08:39","slug":"advances-in-technology-and-protection-of-the-rights-of-the-accused","status":"publish","type":"post","link":"https:\/\/cyberthreatintelligencenetwork.com\/index.php\/2013\/09\/09\/advances-in-technology-and-protection-of-the-rights-of-the-accused\/","title":{"rendered":"Advances in Technology and Protection of the Rights of the Accused"},"content":{"rendered":"

When looking at recent case law and Supreme Court rulings on how advances in technology affect the rights of the accused it appears to be a mixed bag. This is especially true in the case where suspects are asked to disclose passwords or decryption keys. \u00a0The Fifth Amendment to the U.S. Constitution provides that no person \u201cbe compelled in any criminal case to be a witness against himself.\u201d There have been two key conflicting Supreme Court rulings that have bearing on the Fifth Amendment<\/b> issue.[1]<\/a> \u00a0The 1966 Miranda v. Arizona ruling resulted in the reading of \u201cMiranda\u201d rights by law enforcement officials on the \u201cright to remain silent.\u201d A recent case heard by the Supreme Court (Salinas v. Texas) concluded that silence alone was insufficient to invoke the Fifth Amendment<\/b> privilege.<\/p>\n

The state courts appear to be really divided on how to interpret Fifth Amendment<\/b> issues with respect to non-disclosure of : 1) encryption keys, and 2) account passwords.\u00a0 I\u2019ll summarize three separate state cases in chronological order from Delaware, Colorado, and Wisconsin below.<\/p>\n

Late 2011 \u2013 Delaware Case<\/span><\/p>\n

In Gore v. Long and BHA Group<\/i> (Del. Ch. Dec. 28, 2011) (Parsons, V.C.) an employee \u201cLong\u201d was terminated after which he went to work for BHA Group. Gore asserted civil claims that Long had unauthorized access to company\u2019s electronic documents. Long turned over company Blackberry upon termination but apparently had copies of some company documents on his personal smart phone and also retained some storage devices.\u00a0 Long could also face criminal penalties under certain provisions of Delaware law; therefore, he said that he would invoke the Fifth Amendment<\/b> if asked questions involving potentially incriminating information.<\/p>\n

During the trial Long did invoke the Fifth Amendment<\/b> but Gore argued that Long had waived this right when he answered certain questions regarding the sequence of events. The judge (Vice Chancellor Parsons) used a \u201ctotality of the circumstances<\/i><\/b>\u201d test on the issue and upheld Long\u2019s invocation of the Fifth Amendment<\/b> by ordering the striking of certain portions of Long\u2019s testimony. Although this case does not deal with encryption, the use of this test establishes an important legal precedent.<\/p>\n

Early 2012 \u2013 Colorado Case<\/span><\/p>\n

In U.S. v. Fricosu<\/i> a court ordered Ramona Fricosu to provide an unencrypted version of her laptop to the court in a mortgage fraud case defrauding banks of an estimated $900,000 (Legal Editor, 2012, May<\/a>). She had earlier claimed Fifth Amendment<\/b> privilege in the case. Judge Robert Blackburn ruling for the U.S. District Court for the District of Colorado issued the order. Her laptop had been seized during a search in 2010; however, investigators had not been able to use it because it was encrypted using PGP Desktop (Lee, 2012, January 24<\/a>). The judge cited a child pornography case in Vermont in making his decision (Grand Jury Subpoena to Boucher).<\/p>\n

April 2013 \u2013 Wisconsin Case<\/span><\/p>\n

In a Wisconsin case involving child pornography alleged to have been collected by Jeffery Feldman the court ruled to protect the accused\u2019s Fifth Amendment<\/b> rights.\u00a0 FBI agents traced the material to home of this software developer with a Fortune 500 company and, with a search warrant, seized his computer and \u201cmore than a dozen external hard drives with nearly 20 terabytes of storage capacity\u201d (Vielmetti, 2013, April 25<\/a>). All of the material was encrypted.\u00a0 Feldman invoked the Fifth Amendment<\/b> when asked to decrypt the contents and he was held in contempt of court.\u00a0 Upon appeal, this decision was reversed.<\/p>\n

Key Issues:<\/b><\/p>\n

For purposes of debate, I will take the position that courts need to provide law enforcement authorities with more direction on what can, and cannot be done with respect to compelling witnesses and\/or suspects in providing decryption keys. In researching this topic I can across both the totality of the circumstances test<\/i><\/b> and a principal that is being advanced called the \u201cforegone conclusion argument<\/i><\/b>.\u201d It is my belief that a totality of the circumstances argument could be made in criminal cases where there is other evidence suggesting that information on an encrypted hard drive would substantiate a working hypothesis.\u00a0 Extending this logic even farther, law enforcement officials and prosecuting attorneys could also benefit by leveraging other evidence to make a foregone conclusion argument to a judge.\u00a0 Here, the case could be made that other evidence that points to the guilt of the accused and<\/strong><\/em> any unencrypted information from the digital evidence would only substantiate this case.<\/p>\n

Of course, this strategy assumes that the law enforcement officials actually have<\/i><\/b> additional evidence.<\/p>\n

References:<\/b><\/p>\n

Lee, T. (2012, January 24). Judge: Fifth Amendment doesn’t protect encrypted hard drives. ArsTechnica<\/i>. http:\/\/arstechnica.com\/tech-policy\/2012\/01\/judge-fifth-amendment-doesnt-protect-encrypted-hard-drives\/<\/a><\/p>\n

Legal Editor. (2012, May). Courts rule for, against hard drive encryption. Information Management, Vol. 26, Num. 3<\/i>. <\/p>\n

Vielmetti, B. (2013, April 25). West Allis encryption case delves into Fifth Amendment case: Porn investigation has unusual twist. Milwaukee, Wisconsin – Journal Sentinel<\/i>. <\/p>\n

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[1]<\/a> Miranda v. Arizona, 384 U.S. 436 (1966) (http:\/\/www.law.cornell.edu\/supct\/html\/historics\/USSC_CR_0384_0436_ZS.html<\/a>) and Salinas v. Texas, No. 12-246 (http:\/\/www.supremecourt.gov\/opinions\/12pdf\/12-246_7l48.pdf<\/a>).<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

When looking at recent case law and Supreme Court rulings on how advances in technology affect the rights of the accused it appears to be a mixed bag. <\/p>\n","protected":false},"author":2,"featured_media":241,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"elementor_theme","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[101,27],"tags":[241,242,243,244,245,246,247,248,249,250,251],"class_list":["post-240","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","category-policy","tag-account-passwords","tag-criminal-case","tag-encryption-keys","tag-fifth-amendment-issue","tag-fifth-amendment-privilege","tag-law-enforcement-officials","tag-miranda-rights","tag-rights-of-the-accused","tag-storage-devices","tag-supreme-court-rulings","tag-u-s-constitution"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t