Thursday, July 14, 2011

I Plead The Fifth (i.e. Me Trying My Lawyering Skills)

GeeksAreSexy- A Colorado court case could set a precedent on whether the right to remain silent extends to encrypted files. The Justice Department wants a federal judge to rule that defendant Ramon Fricosu must decrypt a laptop that prosecutors believe has evidence showing her guilt in an alleged mortgage scam. Fricosu’s lawyers say doing so could incriminate her, and thus she has the legal right to refuse to do so under the Fifth Amendment, specifically the best known section, which reads “nor shall [a person] be compelled in any criminal case to be a witness against himself.” There is, to say the least, an element of confusion over how both the constitution and previous legal interpretations of it relate to computer encryption. The government lawyers believe the case should be likened to ordering a defendant to provide a key to a safe, which has been judged legal in the past. The defense side counters that Fricosu is being required to provide a form of “compelled testimonial communications”. It’s preferred comparison is to a defendant asked to provide the combination to a lock on a safe, a request previous rulings have said cannot be mandatory. With the ball back in the government’s court, the most important element may be that it’s request in the case is not for Fricosu to provide any information such as handing over a decryption key. Instead it wants her to decrypt the files herself, with nobody else seeing the decryption key... The most directly relevant case, where prosecutors wanted to force the defendant to decrypt files, didn’t get as far as a ruling because the defendant complied.

Warning: Not a comedy blog. Granted, most people don't find my other posts to be comedy either but this one is not supposed to be.

Now, as a psychology major who might go to law school my legal knowledge is slightly above average. I can fight a speeding ticket but I'm still getting someone to fight for me for anything worse than that. So, I am going to try and guess what will happen in the case. 

1. The people who are comparing this to a key are stretching. A key is physical evidence. In a trial, withholding physical evidence from the other party is a federal crime. If the plaintiff or defendant has evidence that has been requested, they must turn it over. This is not physical evidence, therefore it does not need to be handed over.

2. When someone is called in to consult, i.e. to do something like decrypt a file, they become an "expert witness". If, while being considered an "expert witness", the defendant would incriminate themselves, they may plead the 5th because they would then be "a witness against himself". Word for word what the 5th Amendment says.

So, as Marshall Erikson would say, "Lawyered"

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