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A Minnesota appeal court has ruled that a trial judge was within his rights to allow police evidence about the presence of an encryption program on a defendant's computer to be admitted in a child abuse case. The ruling came as the Minnesota State Court of Appeals rejected an appeal by David Levie against his conviction for soliciting a nine-year-old girl into posing naked for digital pictures.

One of the grounds for Levie's appeal was that the "district court erred in admitting evidence of appellant’s internet use and the encryption capability of his computer". A forensic examination of Levie's computer by a retired police officer discovered it was loaded with PGP which "can basically encrypt any file". Under cross-examination, retired cop Brooke Schaub also said that the PGP program may be included on every Macintosh computer that comes out today.

Lawyers for Levie argued on appeal that his "internet use had nothing to do with the issues in this case" that "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".

The appeal court rejected these arguments, one of four strands in Levie's appeal. "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," the court ruled. Although it rejected Levie's request for a retrial it sent the case back to a lower court for resentencing, after conceding the legal basis of some aspects of the conviction were flawed.

The case, although never put before a jury, could establish the precendent that the use of an encryption programme might be admitted as evidence of criminal intent, as least in Minnesota. The attitude seems to be "if you have nothing to hide why do you need secrecy tools". ®

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