EFF fights forced file decryption with Fifth, for Fricosu

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By Richi Jennings (@richi ) - July 13, 2011.

Should the feds be allowed to decrypt your files by force? Ramona Fricosu and the Electronic Frontier Foundation think not, citing the Fifth Amendment. In IT Blogwatch, bloggers weigh up the pros and cons.

Your humble blogwatcher curated these bloggy bits for your entertainment. Not to mention: Scam the scammers: Brilliant way to phight phishing...

Kevin Fogarty reports:

A lawyer for the defendant...said forcing someone to give up a password, or type it in, violates the Fifth Amendment...because it forces the defendant to help gather information that might help the prosecution.


Not so, according to prosecutors and the DOJ. A hard drive is...just like a closet, cupboard or other container...prosecutors charge. With a search warrant or subpoena, police and prosecutors can enter a house against the owner's wishes...to search for evidence. They can force a defendant to open a locked safe. ...


Laptops are more than filing cabinets...the EFF argues. ... No one should be forced to help prosecutors convict them, whether or not a laptop holds evidence...the EFF argued.  

  Edward Berridge adds:

It has yet to be decided if such a demand breaks the US Constitution's Fifth Amendment. ... Fricosu's [lawyer] Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. ... The [DoJ] claims that the court order represents a simple extension of prosecutors' long-standing ability to assemble information that could become evidence.


Civil rights groups say that Americans can't be forced to give "compelled testimonial communications" and want the...Fifth Amendment to cover encryption passphrases. The [EFF] argues that the Justice Department's request needs to be rejected.  

Colin Ross has more deets:

The computer was seized by the government in a May 2010 raid on the Fricosu’s home. ... Fricosu and her husband have been charged with crimes relating to fraudulent real estate practices. ... [T]he government applied for and received another search warrant to specifically examine the contents...but could not get past the device’s encryption. ... [A] year later...prosecutors asked the court to force the defendant to access the computer’s information.


Prosecutors have given the Fricosu limited immunity...to get around the possible self-incrimination issue, but the [EFF] argues that it was not comprehensive enough.  

Huh? Darren Murph 'splains:

...[N]o one's asking that Ramona actually hand over the password per se, but even typing in the unlock code...results in effectively the same conclusion. The [EFF] is...noting that this type of situation is exactly one that the Fifth was designed [for]. Only time will tell if Fricosu's offered immunity...for complying, but the precedents that are set here are apt to be felt for decades to come.  

Meanwhile, betterunixthanunix draws an analogy:

...Suppose the defendant had been using secret code words, known only to her...should the prosecutor have the right to compel her to explain those code-words? What makes AES any different? ... The argument that the police will be unable to gather evidence if criminals use encryption is just as weak.  

As does MetalliQaZ:

This [would] be a seriously frightening precedent.


They would never be able to take someone accused of murder and say..."look, we know you did it, we just lack all the evidence. ... You are now ordered to show us every place you visited on the day in question, including where the body is hidden."  

  And Finally...
Scam the scammers: Brilliant way to phight phishing
[hat tip and background: Tomble]


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Richi Jennings, your humble blogwatcher

Richi Jennings is an independent analyst/consultant, specializing in blogging, email, and security. He's the creator and main author of Computerworld's IT Blogwatch -- for which he has won American Society of Business Publication Editors and Jesse H. Neal awards on behalf of Computerworld. He also writes The Long View for IDG Enterprise. A cross-functional IT geek since 1985, you can follow him as @richi on Twitter, pretend to be richij's friend on Facebook, or just use good old email: itbw@richij.com. You can also read Richi's full profile and disclosure of his industry affiliations.

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