PGP Ruled as Relevant For Criminal Case

waytoomuchcoffee writes "A Minnesota appeals unamimously ruled in a child porn case that "the existence of an encryption program" on the defendants computer could be admitted as evidence of criminal intent. The article doesn't mention if this can be taken into account for sentencing too."

Comments

From the decision itself:

[amliebsch]

Finally, Schaub testified that, in a file entitled "research," he found the text of Minn. Stat. 617.246, which included "the definition of minor sexual performance, sexual conduct, things of that nature." He also testified that he found an encryption program, PGP, on appellant's computer; PGP "can basically encrypt any file;" and, "other than the National Security Agency," he was not aware of anyone who could break such an encryption. But Schaub also admitted that the PGP program may be included on every Macintosh computer that comes out today, and appellant may have had the text of Minn. Stat. 617.246 in his computer because of prior allegations against him.

This appears to be the only discussion of the encryption issue:

ANALYSIS I. Relevance Appellant first argues that he is entitled to a new trial because the district court erred in admitting irrelevant evidence of his internet usage and the existence of an encryption program on his computer. Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978). And rulings on relevancy will only be reversed when that discretion has been clearly abused. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). "The party claiming error has the burden of showing both the error and the prejudice." State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995). Appellant argues that his "internet use had nothing to do with the issues in this case;" "there was no evidence that there was anything encrypted on the computer;" and that he "was prejudiced because the court specifically used this evidence in its findings of fact and in reaching its verdict." We are not persuaded by appellant's arguments. The record shows that appellant took a large number of pictures of S.M. with a digital camera, and that he would upload those pictures onto his computer soon after taking them. We find that evidence of appellant's internet use and the existence of an encryption program on his computer was at least somewhat relevant to the state's case against him. See Minn. R. Evid. 401.

The entire case is available at http://www.lawlibrary.state.mn.us/archive/ctappub/ 0505/opa040381-0503.htm

Re:Encryption use != evil

[anagama]

Let me preface this by saying I know nothing of MN law or the facts of this case beyond the short article. However, I am a lawyer and I can guess at why the prosecution would want to get this evidence in the record and why it would be admitted.

The Prosecutor would likely argue that the existence of the encryption software demonstrates that the defendant knew that what he was doing was wrong and that he was trying to hide damning evidence. Hiding evidence against you is frowned on. If you know evidence could be used against you and then go about destroying it, in certain situations the court is entitled to instruct the jury to presume that the destroyed evidence would be harmful to your case.

Now, encrypted evidence may not be literally destroyed, but it is as good as destroyed as long as it remains encrypted. It's kind of like a shredded document -- although it is conceivable that it could be reassembled, if it is mixed with enough random material, reassembly is all but impossible.

Anyway, I don't see this as a suggestion that encryption is bad per se. I see it as an extension of basic evidence rules -- if there is other evidence suggesting you have bad files and you have intentionally made those file unreadable, the tools you used to do that are possibly relevant. Kind of like pointing out the defendant owned a shredder, there was huge pile of shredded paper by it, and the "smoking gun" documents are no where to be found.

Last, it doesn't exactly sound like PGP was a "factor in his punishment". Rather, it sounds like it was a factor in his conviction. If the court had ruled that the evidence was inadmissible, then a new trial might have been ordered. This would require a finding that the irrelevant evidence was prejudicial enough that it could have formed a basis for the conviction. If the error was not considered substantial, then no new trial would have been ordered. Obviously, one never reaches the punishment phase without conviction, but I didn't read anything that suggested the punishment was more severe by virtue of the PGP software (kind of like a firearm enhancement).

Re:Encryption use != evil

[Doctor_Jest]

Call me wacky, but:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... (and so on...)

Has a privacy ring to it.... It's a right. If you want to keep something to yourself... this particular amendment provides a mechanism for which you are able to do that. Granted, it is not specifically stated "privacy", but applying the reasonable man test, you can see where privacy is upheld over public scrutiny. When privacy needs to be violated, it requires more work than just "LET ME SEE YOUR STUFF." :-) And for good reason, as evidenced by the groupings and subjects of amendments 1 - 10.

Which, if our courts weren't so broken, judicial review would toss out the "sneak and peek" provisions of the Patriot Act faster than you can say "Amendment IV".

After I had my laptop stolen, I lock it down more

[steve_l]

My laptop got stolen from my own house last year; in hibernate state.

Revoking SSH keys took as much time as killing card info, There is so many places sensititive data could end up (like your bank login/card info), such as
-hibernate file
-pagefile
-browser password store
-browser page cache
-directory where I save PDF shopping receipts
-mailbox

Now I lock a lot of the system down. Not just my home dir
-temp
-browser cache
-various program directories.
This is win32, where the EFS stuff doesnt encrypt filenames, just the contents. Its known that EFS is breakable (just reset the login password or something), but to make it harder

1. laptop needs a bios password.
2. that password is also used to enable the HDD
3. My winnt EFS private key is stored in the laptop TPM module.

#3 is interesting. I know TPM is associated with 'evil-DRM-Trusted-computing-stuff', but I use it as an unbreakable store of my sensitive keys. If what the inventors say is true (I work with some of them), you'd have to be a stronly motivate government to stand a chance of getting stuff off the TPM, so implicitly, off this hard disk.

Does this make me a criminal? I dont think so. The police told me off for not bios-locking my last box. Their view is the less usable stolen laptops are, the less valuable they are, so theft reduces all round. It is every laptop owner's duty to lock down their boxes so nobody can get at them!