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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."
"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," Judge R.A. Randall wrote in an opinion dated May 3.
I find this very disturbing based on the attitude people have regarding encryption. It's seen in such a negative way as if everyone who uses encryption as evil. Let me put it this way:
ENCRYPTION != EVIL
I use this for my day to day communications. Either over IM, E-Mail or moving things from server to server (GPG, then sending the file via FTP etc.). How do we help the public to understand that just because someone wants to keep something secret, even under a mass of public scrutiny, it does not constitute someone breaking the law! I have a TON of letters to and from my girlfriend that are encrypted, that she herself does as well!
I'm not saying the guy accused of the crime shouldn't produce keys, he obviously was doing something totally heinous by photographing a 9 year old in sexual position, and then those pictures destroyed. Predators of this nature are f-ing sick creatures that need some bad rehabilitation.
My point is the attitude of the people. Admission of the fact that he had PGP on his computer shouldn't be a condemning factor of his behavior and should be based on his crimes. NOT THE FACILITATOR, MEANS, TOOL (Physical or otherwise) OR SOFTWARE to commit such crimes. He was using perfectly legal encryption utilities and software.
Just because they were for hiding his crimes/pictures should NOT be a factor in his punishment. What kind of precedent would the judge be inadvertently (or purposely??) placing on the use and ownership of encryption and the tools to do such?
~zoloto
And with other evidence, why shouldn't it be? In fact, the presence of it ought to lead prosecutors to tack on the charge of conspiracy.
Just like the presence of a gun during a robbery lifts the crime to armed robbery, the presence of encryption ought to imply not only that the culprit intended to commit the crime but also intended to cover it up as well.
Yes, the crime is reprehensible and unforgivable.
But that doesn't mean the presence of encryption tools meant he was guilty. Encryption tools have many uses, some of which are good - like authentication and assurance of confidentiality. It's great to have encryption tools like PGP when you're sending an email to your broker that you want to issue a stock trade from your investments account. Or to be reasonably assured that discussing a prototype / secret business proposal will not be intercepted.
Encryption is merely a tool, to be used for both good and evil. A mail envelope can contain mail, or it can contain anthrax. An encrypted document could be a plot by terrorists, or it could be just any other email.
Doing the Right Thing should not be preempted by making a buck.
I used Fedora Core 2. Encryption built right in, 256 bit in any of a few flavors. I encrypt my journal, which has nothing illegal in it. But, if I'm unwilling to let someone read my personal files, why not accuse me of any number of terrible things? Terrorist? Necrophile? Hell, rack'em up boys! If he has an encryption program, he's obviously a criminal?
Good citizens have nothing to hide, after all. Why don't we just ban encryption entirely? And we'll install the cameras here and here...
Seriously...
I'm not totally familiar with what this means legally, but I know it's a bad thing. And a reason for every OS to include it by default, PRONTO!
If this stands up, privacy will take a beating.
The encryption software here is treated in the same manner as an item such as a large bag would be treated in a shoplifting case. That is, if you go into a store, see something you like, grab it, and run, the court would likely view that as something that you did at the spur of the moment, without putting much forethought into it. The crime, while still very much a crime, would likely be treated as a stupid action you took because you didn't stop to think if it was right or wrong, and the sentence would likely be applied with some leniency. In such a case, assuming the item costs less than $400.00, the crime would be treated as a misdemeanor. On the other hand, if you had entered the store with an unnecessarily large bag that is mostly empty, this might, in the eyes of the court, show that you had planned to shoplift from the outset, and you would receive a much stiffer punishment. In this case, the crime would likely be treated as a felony, regardless of the item's value.
In much the same way, the court handling this pornography case is probably trying to determine under which of the statutes the aforementioned materials fall, and the presence of software used with the intent to traffic in such material, regardless of the software's generally accepted purpose, can allow the prosecution to go for a crime with stiffer penalties.
In other words, if you use PGP, don't worry, because it's not going to be outlawed. But if you're the guy in that pornography case, be afraid... be very afraid. Here in Soviet Russia, pornography encrypts YOU!
As an aside, one should not look at pornography, because it can have an adverse effect on future relationships that you might have.
This is one of those cases where use of a legal tool to aid or cover up a crime can absolutely be part of the case, and it is NOT an indictment of the tool.
My sig is blank, I typed this by hand.
If you built an underground cavern with a hidden door, security cameras, and multiple locks to hide the dead bodies from your killing rampage, the fact you spent all that time doing it should be evidence in the case of your intent.
This person is not being indicted for using crypto, his use of it is simply being used to show intent... why is that so wrong?
If you hide evidence in the course of any crime, the fact that you hid it is a perfectly reasonable thing to be brought up at trial, is this any different?
If someone gets arrested with bolt cutters breaking into a building, it's reasonable to use the presence of the bolt cutters at trial, just as it's reasonable to show any other tools (such as crypto) that were used to commit a crime.
My sig is blank, I typed this by hand.
The unfortunate thing about encryption is that it's not as pervasive as it should be. Virtually everybody has a lock on their house, and only rarely are they trying to conceal a criminal act. Virtually everybody puts mail -- particularly sensitive mail -- in envelopes before sending it, and again this is to retain privacy rather than deter law enforcement. But encrypted files are uncommon and therefore draw attention, right or wrong.
This is another example of where our justice system has gone round the bend when it comes to understanding new (and not even -that- new) technology and its relation to currently accepted practices in other parts of life. Locksmithing tools are specific to that practice, but encryption tools are general purpose and not only legal but encouraged for use by average citizens to retain their privacy.
Horrible precedents are usually set over reprehensible crimes, when said crimes represent only the tinest portion of the larger picture. Hopefully that won't be the case here when everything shakes out, but I have a feeling encryption will be severely curtailed in years to come as average people become more familiar with it and it becomes harder for law enforcement to deal with.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
This is what the judge said (from the article):
"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," Judge R.A. Randall wrote in an opinion dated May 3.
He did not say the encryption program was evidence of guilt.
To say otherwise is tabloid "journalism."
I see what you're saying...but there are several flaws in this reasoning, both theoretical and practical.
(And for the record, when it comes to child pornographers, there can be no punishment too severe.)
Wrong. This is simply adding intent and conspiracy elements to the crime, it would be the same as you killing someone with a knife and then buying five gallons of bleach to clean up the blood splatters on the walls. Buying bleach is of course legal, and no one is questioning that, but adding the fact that you bought/used the bleach for a specific purposes related to the crime absolutely shows that you a) knew what you were doing b) had the presence of mind to clean up after yourself c) intended to conceal the crime.
No, I would say this is more like you killing someone with a knife and simultaneously having a bottle of bleach at home in the laundry room, and they have no evidence of you buying or using it for any other reason than doing the laundry, and yet it is somehow taken as "supporting evidence" that your crime was thought out in advance, with you having the bleach on hand specifically to clean up after the crime. Obviously the bleach could have been used to clean up some blood, so that must have been your intention in owning it.
Your mistake is in comparing this to a non-ordinary amount of bleach and suggesting they had some sort of evidence that you used the bleach to clean the blood off the walls. This encryption software is just an everyday, regular size, common bottle of bleach sitting in the laundry room, just like almost anyone would have in their home if they happen to have a laundry room. It indicates absolutely nothing. Thinking otherwise is an extremely dangerous logical fallacy. And it absolutely IS an indictment of the tool. Encryption software is not the logical equivalent of five gallons of bleach.
This person is not being indicted for using crypto, his use of it is simply being used to show intent... why is that so wrong?
Because you, like most of the slashdotters arguing in favor of this ruling, apparently haven't read the fucking article. There is no evidence whatsoever that the man used encryption for ANYTHING AT ALL, much less hiding child porn. None. Nada. Zip.
It was present on his computer. That's it. It's also present on your computer if you use WinXP, Win2000, or have just about any distro of Linux. And we'll be sure to use it as 'evidence' of your intent to 'hide your crime' should we ever suspect you of doing anything illegal.
Max
My god carries a hammer. Your god died nailed to a tree. Any questions?
Use your brain.
Oh, no! Using a brain is a crime by itself in modern advertisment-based society.
Read Fahrenheit 451 or many other stories by American SF writers. They warn you 50 years ago that this would end with that - having encyption software is a crime, having gun is a crime, thinking independently is a crime too.
This clearly could only happen because everybody said: I have nothing to hide, so why use encryption?
Every time I hear that argument I almost explode in a rage and claim that at times the usage of encryption alone will be held evidence that you're a criminal.
These times start NOW.
And by the way, this is YOUR fault you lazy bum.
-jsl
Dyslectics of the world, untie!