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Mass. Supreme Court Says Defendant Can Be Compelled To Decrypt Data
Trailrunner7 (1100399) writes ... Security experts have been pounding the drum about the importance of encrypting not just data in transit, but information stored on laptops, phones, and portable drives. But the Massachusetts Supreme Judicial Court put a dent in that armor on Wednesday, ruling that a criminal defendant could be compelled to decrypt the contents of his laptops. The case centers on a lawyer who was arrested in 2009 for allegedly participating in a mortgage fraud scheme. The defendant, Leon I. Gelfgatt, admitted to Massachusetts state police that he had done work with a company called Baylor Holdings and that he encrypted his communications and the hard drives of all of his computers. He said that he could decrypt the computers seized from his home, but refused to do so. The MJSC, the highest court in Massachusetts, was considering the question of whether the act of entering the password to decrypt the contents of a computer was an act of self-incrimination, thereby violating Gelfgatt's Fifth Amendment rights.
The ruling.
Take the 5th and say your computer crashed. That works for the IRS.
if it's good enough for the IRS....
I get the legalese argument the guy as trying to make and the narrow line they tried to draw with the ruling, but Im not sure why it even got past the original judge.
If it had been the exact same situation, just a combination lock on on physical file cabinet in his office, once a proper court subpena was issued Law Enforcement might have asked for the combination as a courtesy but would have been perfectly within their rights to simply cut the thing open. And if they found evidence of some unrelated crime, that is long been fair game just like a drug bust during a traffic stop.
Maybe it's different by State, I dont know
Common Sense isn't as Common as people think...
I think the correct response here would be to say that you can plead the 5th on the question of whether you can decrypt it or not, and if you claim the 5th compulsion is illegal. However, once you make an affirmative statement you waive the right to not be compelled. In terms of a key, it would be like if you had an almost impenetrable door that used a single key. The police ask you if you are in possession of said key while they have a valid warrant. You say yes, which means they have a right to compel you to hand over the key per the valid warrant. However if you shrug and plead the 5th it should not be on you at that point.
As an accused boot-licking pro-establishment government-and-big-business shill, I agree.
As a relatively sane individual who tends to think for myself, I also agree.
As someone with passing familiarity with 4th-amendment case law, I also agree.
This guy was a first-class idiot. An encrypted hard drive is little different from a locked safe. A court can order you to open it to reveal evidence, but the police need sufficient probable cause to convince a judge to issue that order. Saying "All the evidence is in there and I have the key" is pretty convincing probable cause that there's important relevant evidence in the safe (or disk). Saying nothing is a good way (and the only really safe way, as far as I know) to ensure that you're not giving the cops any additional assistance in proving your guilt.
You do not have a moral or legal right to do absolutely anything you want.
But having opened the safe, can they force you to 'decode' the entries on a paper document which are written in a code or cipher? If not, then they should not be able to force you to decrypt an electronic document which is written in 'code'.
A safe can also have a combination lock or keypad, more frequently then a physical key.
He should have remained silent. Being a lawyer he should have known that.
He must be a pretty shite lawyer. (Hopefully he isn't a criminal defense lawyer, because then he really IS a shite lawyer.)
FTFA:
“During his postarrest interview with State police Trooper Patrick M. Johnson, the defendant stated ... ‘[e]verything is encrypted and no one is going to get to it.’ The defendant acknowledged that he was able to perform decryption.”
What a dumb-bumble-fark. He deserves to burn for bragging/taunting the cops.
Rules for Talking to Cops
ONE Don't talk to cops, except what you are legally required to say (you must ID yourself, to whatever extent your state's laws specify) TWO The only thing that should come out of your piehole from the time your are arrested (especialy during any "post-arrest 'let's get the suspect to incriminate himself' interview") are the words: "I wish to remain silent and I want a lawyer." TREE STFU until you get a lawyer FOUR Remember that Everything you say will be used to burn you. Cops can lie and get away with it, and if you lie to a cop, you're fried. Do not believe anything they say, and don't try to talk your way out of it because you'll lose. NaN Getting (and following) legal advice from random people on the internets is about the stupidest thing you could do.Yeah, right.
> You saying "I lost the data" is equivalent to saying "My whole life is a lie and I don't actually know how to do any
> of the things I always talk about." Bullshit. You didn't lose the data.
Funny you would say that because.... you know I have a bunch of encrypted partitions, some of which I actually can't open. Some of it is encrypted with keys that I deleted because they were not needed. For example I have one particular one I can't open, because I never saved the key....it was only a temporary place to pull some data off encrypted tape to search for something.... after I no longer needed it, I just unmounted it. At the time I meant to go back and look for more, I never did, then I forgot the key....big deal....I have the tape still.
Course, I could never prove to anyone else that the data in there is the same as is on the tape....but.... frankly, that wasn't one of my concerns when i created it....I just didn't want to write it all to unencrypted disk and leave it sitting there.
I also have a few emails encrypted to my pgp key from the 90s. I can't seem top decrypt my key even though I thought i remembered the password. I only keep it around because someday I might guess right and there would be some minor use to having it.
Guess my whole life is a lie because I lost some data. I better go resign my day job right now!
"I opened my eyes, and everything went dark again"
OK... so the fact that they have a 6 month retention policy is one thing, and does, indeed, pretty much invalidate Rigel47's post.
BUT it does raise a perhaps more important question...
IANAL, but I believe the IRS can audit you after up to 6 years. Bearing this in mind, and the fact that I think it is highly unlikely that they would accept the excuse of "I only have a 6-month retention policy on my receipts" as sufficient to allow you to get away without providing the relevant documentation, it does lead me to wonder... If they are forcing and enforcing long retention policies on those that they serve, why do they get away with only having to accommodate a twelfth of the retention period themselves?
Just my $0.03 (At current exchange rates, my £0.02 is worth more than your $0.02)