Loss of Privacy

A Colorado judge has ruled that a defendant must decrypt her PGP- encrypted hard drives and allow the police to look at the device for incriminating evidence.

Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination.

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.

Although the defendant in the case intends to appeal, there are conflicting decisions already on the books.

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s “protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination,” the court ruled (PDF).

A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.

The debate as to whether or not decrypting a computer by a defendant is a violation of the fifth amendment will continue as more cases like these come to trial. On the one side the argument is that decryption is similar to handing over the keys to a storage or safe deposit box while, on the other, privacy advocates state that giving up any information to decrypt a computer is the equivalent of testifying against oneself.

Also of note is that, in this particular case, the prosecution has to prove that she has the means to decrypt the laptop. If she is unable to do so, there is little else the prosecution can do.

As it stands right now, there is case law for both sides and it does not appear as if the debate is going to be settled any time soon. At some point, this issue will reach the Supreme Court because there are far too many conflicting points on both sides, in numerous cases, for the issue to be clear.

Would you like to walk down the street and be subjected to a strip search that you didn’t consent to or have knowledge of? That’s what could happen once the Department of Defense and the NYPD complete their research into detecting weapons from a distance.

It’s called Terahertz Imaging Detection. It measures the energy radiating from a body up to 16 feet away, and can detect anything blocking it, like a gun.

Naturally, there are those who don’t understand that even if you don’t have anything to hide, you still have a right to privacy.

“It’s definitely a privacy issue, but it’s for our safety. So it’s just one of those things, a double-edged sword,” added Clarence Moore of Union, N.J.

“I think it’s good. I think if someone has something to hide and they’re going to worry about it, who cares?” Robert McDougall added.

Others, including the New York Civil Liberties Union, doesn’t think this way.

“It’s worrisome. It implicates privacy, the right to walk down the street without being subjected to a virtual pat-down by the Police Department when you’re doing nothing wrong,” the NYCLU’s Donna Lieberman said.

One particular comment from a person on the street should stop and make everyone think.

“If they search you, you’re not giving consent, so they can do what they want, meaning they can use that as an excuse to search you for other means. I don’t think that’s constitutional at all,” Devan Thomas said.

Whether or not you have anything to hide, there is 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 no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

One wonders how Kyllo vs. United States, 533 U.S. 27 (2001), would fit into the use of such devices.

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Google, Yahoo, Facebook and Amazon are considering a day of blackout to protest the “Stop Online Privacy Act” or SOPA. Cenk Uygur and Ana Kasparian discuss SOPA and what kind of impact this protest would have.

From TYT Network.