A US federal magistrate has refused to order a Wisconsin computer scientist and child abuse image suspect, Jeffrey Feldman, to decrypt the hard drives the government seized from him.
The rationale of Magistrate William Callahan Jr. of Wisconsin: the Fifth Amendment to the US Constitution shields citizens from being compelled to self-incriminate.
Callahan wrote [PDF, posted courtesy of Wired] that, unlike in similar cases, where the government has compelled people to unlock the encrypted portions of their hard drives, in this case, Feldman hasn’t admitted that he has access and control of the hardware.
This is in spite of the many storage devices in question having been found in his house, where he’s lived alone for 15 years.
This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with 'reasonably particularity' - namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.
The government, trying to convince the courts to force the suspect to comply, had said [PDF, again posted courtesy of Wired] that if Feldman doesn’t unlock the drives, the case could suck up even more resources than it has already, and investigators might even damage the hardware.
From the court papers:
The United States, the FBI in particular, has already expended substantial resources in the effort to break the encryption preventing it from accessing the information as ordered by the Search Warrant and more will be required if the encryption must be broken manually. Members of the FBI's Computer Analysis Response Team (CART) have spent more than ten weeks decrypting Mr. Feldman's storage devices.
In fact, the prosecutors warn, encryption is getting both tougher to crack and used more widely, painting “a grim picture of the future for law enforcement officers” as they seek to carry out court-mandated search warrants.
Even if you’re a privacy absolutist, even if you believe that the FBI and other law enforcement agencies in the US have gotten a bit too cozy with surveillance of the nation’s citizenry and warrantless searches, you’ve got to have a bit of sympathy for law enforcement here if you believe (and I hope that you all do) that putting child abuse image collectors and creators out of business is a vital job.
The government said in its court papers that what they did manage to glean from unencrypted portions of Feldman’s computer storage showed a large number of user-created links that “strongly suggest, often in graphic terms,” the presence of encrypted abuse images on Feldman’s hardware.
The investigators also found a peer-to-peer sharing utility that contained logs of 1,009 videos that Feldman had allegedly received, distributed and stored – most of the filenames being “unambiguously indicative” of child porn.
If your first inclination is to curse the judge, check that impulse. This is about far more than this one alleged child abuse image collector.
Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, told Wired that the decision is important beyond whether it gums up a child abuse prosecution, because it’s a core issue in regards to government overreach:
This isn’t just about child porn. It’s about anything on your computer that prosecutors or government officials may want.
It’s hard to get enthused about a court decision that hampers law enforcement as they work hard to fight child abuse.
But curbing law enforcement’s already substantial power, particularly when it comes to power that would contradict our Constitutionally guaranteed rights, is what a properly functioning judicial system should be doing.
Add this to a recent judicial decision to deny the FBI the right to plant spyware on a bank fraud suspect’s computer, and you have to come to the conclusion that US courts certainly are capable of gleaning the subtleties of where electronic information, surveillance and our rights intersect.
Should we keep watching this space? Oh, yes.
Just as encryption gets stronger and technology advances, so is the legal landscape every shifting.
That shifting landscape is a very good reason to encrypt your hard drive, though of course device loss and hacking, as always, are right up there to bolster the encryption argument.