Child porn suspect doesn't have to decrypt seized hard drives -- for now

Federal Judge reverses magistrate's order that a Wisconsin software engineer decrypt content stored on seized hard drives

A Wisconsin man ordered last month by a magistrate to decrypt several of his storage drives to let investigators inspect them for evidence of child porn this week won a last minute reprieve from a federal judge.

Judge Rudolph Randa of the U.S. District Court for the Eastern District of Wisconsin Tuesday vacated the compelled disclosure order against Jeffrey Feldman, a senior software development engineer at Rockwell Automation, who is under investigation for suspected possession of child pornography.

Judge Randa's order came after Feldman's attorney, Robin Shellow, filed an emergency motion seeking additional time to argue her client's case.

Late last month, Magistrate Judge William Callahan of the same federal court had given Feldman until Monday to decrypt the drives drives or be held in contempt.

Shellow argued that the magistrate judge had no authority to force decryption or to hold Feldman in contempt for refusing to do so. Shellow also maintained that Callahan's ruling was unfair because it was based only on input from prosecutors.

The case touches upon the important issue of the Fifth Amendment rights that allows for protection against self-incrimination.

Federal agents seized 16 storage devices from Feldman's residence in January, but couldn't inspect them because the contents are encrypted.

Investigators earlier this year moved to seek the court's help in forcing Feldman to decrypt the drives.

Callahan first ruled in April that compelling Feldman to decrypt the devices would be tantamount to forcing him to admit he had control over the drives, and thus was aware of the contents. Such forced disclosure would violate Feldman's right against self-incrimination, Callahan ruled at the time.

Callahan reversed the ruling a few weeks later after the government filed a motion stating that a small portion of Feldman's drives were successfully decrypted. The partially decrypted devices revealed many files that appeared to contain incriminating images, investigators said in the filing for reconsideration.

The partially decrypted drive also revealed several files containing detailed financial records and images of Feldman.

The government argued, and Callahan agreed at that time, that the little information gathered from the drives showed that Feldman had knowledge of and control over the information in them. He ruled that Feldman would not be incriminating himself by decrypting the drives because he would only be providing access to information the government already knew existed.

Judge Randa's order on Tuesday gives Feldman until July 17 to submit a brief in his defense. The government will have until Aug. 14 to respond.

Shellow told Computerworld on Wednesday that it's unclear yet whether Judge Randa is seeking clarification on Feldman's Fifth Amendment arguments or on the previous magistrate judge's authority to issue the May order.

Either way, the case could go on for a while, Shellow said.

The court's next ruling will challenged regardless of who wins, she said. Some issues likely to be raised have few legal precedents and any ruling, therefore, is likely be vigorously challenged, she said.

Shellow predicted that the case will eventually land in the Seventh Circuit Court of Appeals, and could possibly be heard later in the U.S. Supreme Court.

"I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment," Shellow said. "This case is going to go many rounds."

A handful of courts that have heard similar cases in the past have come to different verdicts.

In 2009, for instance, a Vermont federal court ordered Canadian national Sebastien Boucher who was suspected of child pornography, to produce the decrypted contents of his laptop before a grand jury.

Like Feldman, Boucher had maintained that being forced to decrypt the drive is self-incriminatory. However, the judge in that case ruled that government was not asking him for the decryption keys per se, but only for documents whose existence and location were already known to them.

However, in a 2010 case in Michigan, federal judge ruled that a defendant, who was also involved in a child pornography investigation, could not be forced to give up his password because it would be self-incriminatory.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His email address is jvijayan@computerworld.com.

To express your thoughts on Computerworld content, visit Computerworld's Facebook page, LinkedIn page and Twitter stream.
Windows 10 annoyances and solutions
Shop Tech Products at Amazon
Notice to our Readers
We're now using social media to take your comments and feedback. Learn more about this here.