Feeds

US court test for rights not to hand over crypto keys

EFF pushing for digital Fifth Amendment

High performance access to file storage

Civil liberties activists have lent their support to a case that will test whether a US citizen can refuse to decrypt personal data on the grounds that it might be self-incriminatory.

The case involves allegedly fraudulent real estate transactions. The government wants a Colorado court to compel Ramona Fricosu, who is accused of a mortgage scam, into either turning over the passphrase or providing a plain text version of the data held on an encrypted laptop. However, such an order would be in breach of Fifth Amendment protection against self incrimination, according to papers filed by the Electric Frontier Foundation (EFF) in support of Fricosu.

Lawyers for the digital civil liberties organisation argue that the prosecution's demand that Fricosu turn over the passphrase/plain text version is contrary to the Constitution, because it effectively forces Fricosu to become a witness against herself.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act – revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann, in a statement. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

Although prosecutors have made some concessions, they have failed to provide assurances that any data found on the computer won't be used as evidence against Fricosu. Lawyers for the EFF argued in an amicus brief (16-page/146KB PDF) in defence of Fricosu that the request would expose a potential treasure trove of personal data.

"Our computers now hold years of email with family and friends, internet browsing histories, financial and medical information, and the ability to access our online services like Facebook," said EFF Staff Attorney Hanni Fakhoury. "People are right to use passwords and encryption to safeguard this data, and they deserve the law's full protection against the use of it against them.

"This could be a very important case in applying Americans' Fifth Amendment rights in the digital age," she added.

Supreme Court rulings have previously decided that a subject can be compelled to turn over a key in their possession that unlocks a safe containing potentially incriminating evidence, but not the combination to a safe in much the same scenario.

We've asked the EFF whether or not the outcome of the case will have an effect on laptop border searches and the like, and will update this story as and when we hear more.

In the UK, the Regulation of Investigatory Powers Act gives police the powers to force suspects to decrypt files or hand over pass-phrases. Non-compliance is an offence all on its own, punishable on conviction by a two-year jail sentence – or a maximum of five years in cases where national security is involved.

Investigations into suspected possession of child abuse images and related offences is the "main reason" such section 49 notices have been served, but the power has been applied in a range of cases including counter-terrorism, insider dealing, theft and even aggravated burglary. Ministers argued in Parliament that the powers were needed to investigate terrorism and other serious crime.

However, as first reported in The Register back in 2009, the first person jailed for failing to hand over encryption keys to authorities was a schizophrenic software developer initially charged with explosives offences that were later dropped during a police inquiry. ®

Combat fraud and increase customer satisfaction

More from The Register

next story
Putin tells Snowden: Russia conducts no US-style mass surveillance
Gov't is too broke for that, Russian prez says
Lavabit loses contempt of court appeal over protecting Snowden, customers
Judges rule complaints about government power are too little, too late
Don't let no-hire pact suit witnesses call Steve Jobs a bullyboy, plead Apple and Google
'Irrelevant' character evidence should be excluded – lawyers
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Edward Snowden on his Putin TV appearance: 'Why all the criticism?'
Denies Q&A cameo was meant to slam US, big-up Russia
Record labels sue Pandora over vintage song royalties
Companies want payout on recordings made before 1972
Ex-Tony Blair adviser is new top boss at UK spy-hive GCHQ
Robert Hannigan to replace Sir Iain Lobban in the autumn
Judge halts spread of zombie Nortel patents to Texas in Google trial
Epic Rockstar patent war to be waged in California
Reprieve for Weev: Court disowns AT&T hacker's conviction
Appeals court strikes down landmark sentence
German space centre endures cyber attack
Chinese code retrieved but NSA hack not ruled out
prev story

Whitepapers

SANS - Survey on application security programs
In this whitepaper learn about the state of application security programs and practices of 488 surveyed respondents, and discover how mature and effective these programs are.
Combat fraud and increase customer satisfaction
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Top three mobile application threats
Learn about three of the top mobile application security threats facing businesses today and recommendations on how to mitigate the risk.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.