Can A defendant Be required TO unlock HER encrypted laptop OR DOES THE FOURTH AMENDMENT PREVENT THAT?
This is the issue facing a federal judge in Colorado. If she is required to unlock it, all the information on the hard drive will be accessible to the prosecution. She could be giving them the keys to her cell!
On the other hand, isn't her personal property protected by the fourth amendment? Should she be able to mount a defense and not give the prosecutors the ammunition for her firing squad?
These are interesting questions and it will be even more interesting regardless of the outcome of this judge's opinion. We are sure this will be taken to the higher courts.
We believe the fourth amendment should rule the day in the end, however, it will be a long slog until we get there. However disgusting, revolting, illegal, or immoral an activity might be, we cannot make it easier on these tough cases for in the future, the lower standard can be applied against you and me.
What do you think?
Conservative Tom
FED. JUDGE TO DECIDE IF GOV’T CAN FORCE DEFENDANT TO UNLOCK ENCRYPTED LAPTOP
In 2010, authorities took Ramona Fricosu’s Toshiba Satellite M305 laptop with a warrant in a case investigating real estate fraud. But the laptop really couldn’t provide authorities with any information: it was encrypted.Now, Wired reports, a U.S. District Court Judge is set to ruleon whether Fricosu should be forced to open up her computer. It’s the first time such a case will be decided in federal court.
Here’s what both sides are saying on the issue, according to Wired:
The Electronic Frontier Foundation’s Marcia Hoffman said (.pdf) in a court filing that the very act of requiring Fricosu to input her password into the laptop would be incriminating “because it might reveal she had control over the laptop and the data there.”Assistant U.S. Attorney Patricia Davies said(.pdf) said there is no Fifth Amendment breach, and that it might “require significant resources and may harm the subject computer” if it tried to crack the encryption.
Hoffman cites the Fifth Amendment, which states “no person . . . shall be compelled in any criminal case to be a witness against himself[.]” The EFF believes that in compelling Fricosu to enter or provide her information, it would be violating this right.
According to Davies, Fricosu should be ordered by the Colorado U.S. District Judge Robert Blackburn to open up her laptop in order to comply with the warrants that merited the computer’s seizure believing evidence pertaining to the case exists on the device. In response to Hoffman stating that unencrypting the computer could be incriminating in itself, Davies writes in her statement that Fricosu is already tied to the laptop because it was found in her bedroom sitting on her laptop case.
My first thought is that this is not a 4th Amendment case. It is a 5th Amendment case. You have no 4h Amendment defense if the police come to your house with a valid search warrant. They have a warrant to search the computer. If they had a warrant for your house instead of your computer, would you be legally entitled under the 4th Amendment to keep them out of your house if that were somehow within your powers? I don't think so.
ReplyDeleteI don't think the 5th Amendment defense holds up, either. At least not for a strict constitutionalist. The 5th Amendment only means that the government cannot force you to testify under oath and ask you self-incriminating questions against your will. Unlocking the computer is not testifying in court. To me, it is the same as the legal obligation to open the door when the police come with a search warrant.
--David
David, you are right in this is a fifth amendment. my mistake, however, the issue as I understand it, can someone be forced to incriminate themselves by unlocking a computer. You say that the unlocking is like unlocking your door when the police come with a search warrant, however, if she has control, inputting the password, then anything found on the computer could be used against her therefore incriminating herself. Tough case!
ReplyDeleteSo, if you had an impenetrable lock on your door, the court is not permitted by the 5th Amendment to compel you to unlock the door? I don't think so. That is not at all my reading of the 5th Amendment. It only refers to being a witness against yourself. The court can't force you to testify against yourself in a court proceeding. As a strict constitutionalist, I am not going to stretch its meaning to provide protection against unlocking a door, computer, etc. to evade a valid search warrant.
ReplyDeleteThe issue still is--what if there are other things on the computer that were unrelated to the search warrant, would that then not become material? For example, let's say on your computer there were some things that could be considered highly detrimental to the government (letters, articles, emails) that had nothing to do with the charges, could they then use that material against you on separate charges?
ReplyDeleteIsn't a search warrant only for certain items? It can't be a fishing expedition, can it? Otherwise those items not on the search warrant would have to be excluded from any latter charges.
If there are any constitutional scholars out there, I would like to know.
From Wikipedia--It is the fourth amendment.The Fourth Amendment has been held to mean that generally a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. However, a dissenting school of thought often found in the opinions of Justice Antonin Scalia is that searches must simply be "reasonable," and the warrant requirement has been overly emphasized.
ReplyDeleteThe Fourth Amendment applies to governmental searches and seizures, but not those done by private citizens or organizations who are not acting on behalf of a government.[14] The Bill of Rights originally only restricted the power of the federal government. However, in Wolf v. Colorado, the Supreme Court ruled that the Fourth Amendment is applicable to state governments by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain an analogous provision.[15]
The jurisdiction of the federal government in the realm of criminal law was narrow, until the late 19th century when the Interstate Commerce Act and Sherman Antitrust Act were passed. As criminal jurisdiction of the federal government expanded to include other areas such as narcotics, more questions about the Fourth Amendment came to the Supreme Court.[16]
The Supreme Court ruled that some searches and seizures may violate the reasonableness requirement under the Fourth Amendment, even if a warrant is supported by probable cause and is limited in scope.[17] Conversely, the Court has approved routine warrantless seizures, for example "where there is probable cause to believe that a criminal offense has been or is being committed."[18] Thus, the reasonableness requirement and the warrant requirement are somewhat different.
The reasonableness requirement applies not just to a search in combination with a seizure, but also to a search without a seizure, as well as to a seizure without a search.[19]
There are two separate legal points here. The 5th amendment issue, which is what this case is about, is over whether she can be required to unlock the computer so that the warrant may be executed.
ReplyDeleteYou are correct that constitutionally a warrant must specify what they are looking for, and the computer search must be limited to that information. For example, if the warrant authorizes examination of her emails, they could only look at her email files. It would not be legal for them to look also at her financial records for evidence of tax evasion. From the article, it did not seem that the government is asking for an open-ended search of all information on her computer. That would, indeed, be unconstitutional. We would need to look at the language of the warrant to know the precise parameters of the search.
--David
-------------
Ron Paul was very good in the debate tonight. Thinking of your piece about the $16 trillion from the Fed to the banks, Ron was the only one on stage to talk about the Wall Street bailouts. You'll never hear Romney say a word against the banks. I almost fell off the couch when Perry said he'd send troops back into Iraq now!
I believe this is both a 4th and 5th amendment issue. I agree that by providing a password to the computer you could be incriminating yourself. So that is cut and dry.
ReplyDelete4th amendment provides that a search can be conducted with a warrant that specifically describes what can be searched and what is to be Seized. The 4th amendment does not say that a person is required by law to facilitate the search by Unlocking a door or providing a combination to a lock. It is the state's responsibility to get access even if it involves using an Ax to chop down a door or bolt cutters to get into a storage unit. Obviously there are experts who can break encryption but sometimes at the risk of destroying a drive. My impulse is to say that the government must risk damaging the drive to gain access to what they want and the woman should not have to incriminate herself by providing a password. Consider a scenario where they are trying to access a locked door but need to BLAST it open... they risk destroying whats inside... but they still do it.
Wow, this post is fastidious, my sister is analyzing these things, therefore I am going to tell
ReplyDeleteher.
Also visit my web blog :: satiereal saffron extract side effects