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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.
Callahan’s thinking:
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.
Images of Person behind glass and locked computer courtesy of Shutterstock.
This case actually brings up a very interesting point. One of the free programs out there is TrueCrypt and it has a feature to create hidden areas inside a larger container. This hidden area is done in such a way that it is not possible to say for sure if it does or doesn't exist. Due to the nature of that, if you properly use a hidden area they could never force the password from you because they could never prove it even exists.
Hidden encrypted volumes are common knowledge in forensic communities now, and there are ways of detecting the use of hidden encrypted volumes using entropy analysis and difference analysis, so I wouldn't rely on that alone.
Is it possible to transfer encrypted data to disks or does this process destroy the data?Next,is it possible to use the disks to transfer the data to multiple other hard-drives without destroying it?
The way I see it, searching someone' s hard drive is no different to searching their house. If the law has enough evidence for a search warrant they should be given full access to any place or object directly associated with the crime.
This is not only essential for building a case against those who would break the law, but also important for eliminating false lines of enquiry that would otherwise waste valuable time and resources.
In the case of child abuse it is important that the legal system moves quickly as once an investigation is launched it gives abusers time to go underground and destroy vital evidence.
Worse still is the fact that, in many cases, the abuse is ongoing and the only way the law can identify the victims and intervene is by having full access to the evidence they need.
I believe that in this case, even if Jeffrey Feldman is innocent of child abuse, he should still be charged with obstruction of justice (or the regional equivalent), since he is wilfully hampering an ongoing investigation.
Any place or object directly associated with the crime?
What crime? Whatever happened to presumption of innocence?
If the authorities want to go looking for evidence of a crime then they're welcome (with a warrant) to do so, but there's no obligation for anyone to lay all and everything out in front of them on the off chance that they find something incriminating. The onus of proof is on the people making the accusations.
The specific ALLEGATIONS here have presented a bias. You would likely be outraged at the FBI's actions if you considered for a moment that the accused is only the accused. At risk of unlawful examination are any and all data on the drive that is unrelated to the allegations.
Consider as well that our legal system is an adversarial system and the accused has no business helping his accuser.
It seems too that prosecutions of child abuse/porn aren't preventing more of the same. Sounds like the war on drugs, crime, poverty…
It remains true that morality can't be legislated.
"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."
I do believe it is a vital job to put child abuse image collectors and creators out of business, but I also believe that putting leftists, abortionists and gay marriage activist out of a job too. What happens when a majority (even 95%) feel the same way? Will it be okay to stomp on their constitutional rights because of how I feel? I didn't think so.
btw I was only trying to make a point, that's not how I really feel about these issues.
"tantamount to telling the government something it does not already know with 'reasonable particularity' – namely, that Feldman has personal access to and control over the encrypted storage devices" – surely, the password would be something the FBI did not already know with reasonable particularity. So, how can it be that "in similar cases, … the government has compelled people to unlock the encrypted portions of their hard drives"?
Quite simply, you have to catch people like this another way. Self incrimination is just what this would be if you were forced to reveal information. I think a lot of people think that barriers to law enforcement need to be removed so the police/investigators can do their job. This is completely wrong. A free people need these restrictions in place so that we can remain free and not be a populace that is intimidated and meddled with by our government. They are the ones that need the rules and they need to abide by them. If it makes law enforcement a bit harder than so be it. I do not want a police state where they have the power to do as they wish. It means some will get away. It means the job will be harder, but what we gain is greater freedom and we get to live where our police are the ones in check and they are forced by law to respect the citizenry and tread carefully when they even want to step foot on my property. That is the right way and that is the world we should all want to live in.