Minnesota court takes dim view of encryption (News.com) [LWN.net]

According to this News.com story, a Minnesota appeals court has ruled that the presence of PGP on a suspect's computer can be considered evidence of illegal intent. "[Judge] Randall favorably cited testimony given by retired police officer Brooke Schaub, who prepared a computer forensics report--called an EnCase Report--for the prosecution. Schaub testified that PGP 'can basically encrypt any file' and 'other than the National Security Agency,' nobody could break it."

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Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 14:30 UTC (Wed) by chohman (guest, #5519) [Link] (3 responses)

In any case involving "kiddy porn", the authorities, and most others (perhaps understandably) tend to lose all sense of perspective.

My goal is to protect my files from access by others. I can encrypt them, or I can store them on removeable media in a locked box. Does this mean that the presence of a locked box near my floppy-drive-equiped computer can be considered evidence of criminal intent?

I didn't know that the NSA has admitted that they can break PGP?!?

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 14:48 UTC (Wed) by gowen (guest, #23914) [Link] (2 responses)

As I understand it, all that's happened here is that the judge has ruled that the information can be presented as evidence, not that it is proof of bad or illegal intentions.

Similarly, here in the UK, walking down the street with a hammer can be considered "Going equipped for stealing" if (and in practice, only if) there's plenty of other evidence that you're up to no good. And that's all that happened here -- the Judge has ruled that use of encryption is not irrelevant when in conjunction with the other evidence.

Despite how it will inevitably be sold on slashdot, this is not the first step in outlawing encryption. Everyone is well aware that encryption (like my exemplary hammer) has an abundance of legal uses. Similarly, if I've hoard large amounts of ammonia-nitrate fertiliser for my garden, that's fine. But if I hoard that fertiliser along with some over-the-counter blasting caps and plans of the Federal Building in Oklahoma City, the jury would be wise to consider that I might be up to something other than horticulture, and the judge would be wise to allow them to make that judgement.

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 17:57 UTC (Wed) by flewellyn (subscriber, #5047) [Link]

Quite right. I'm not exactly seeing this as a huge threat. Indeed, I might almost call the News.com headline sensationalist.

Wait, what's this "almost"?

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 18:47 UTC (Wed) by vmole (guest, #111) [Link]

Everyone is well aware that encryption (like my exemplary hammer) has an abundance of legal uses.

Sadly, I don't think that's the case. Sure, you and I know that encrypting something is not inherently hiding criminal activity, but various US law enforcement and regulatory angencies have been implying otherwise for the last 10 or 15 years in their repeated attempts to limit the cryptographical tools available to "normal people", and requests for required key escrow, and innumerable press releases about how encrypted cellphones are used by druglords (pre 11/9/2001) and terrorists (since then).[1] Remember the flurry of stories a few years back about how terrorists were hiding their communications via steganography, despite the fact that no one had every actually found a single instance?

The difference is that pretty much everyone has used a hammer for a legal purpose, so the occasional "Thug Breaks Jewelery Store Window with Hammer" headline doesn't produce a "Oh my god, we must outlaw hammers" reaction. Handguns are legal too, but because the only news most people hear about guns tends to involve their use in illegal activities, we have a fairly strong anti-gun movement in this country. To a large part of the US populace, encryption is viewed in much the same way. Besides, it's associated with computers and the Internet, which everyone knows is used mostly for trading music, movies, and child pornography.

Steve

[1] Of course, people miss the obvious answer, which is to ban cellphones.

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 14:45 UTC (Wed) by thompsot (guest, #12368) [Link]

"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," Judge R.A. Randall wrote in an opinion dated May 3."

I think the judge here is just trying to use what is available to hand this guy a tough sentence. This is not a case where encryption or the internet is going to be illegal. Attorneys and judges do this all the time when looking for a particular outcome to a case, and the pieces and parts of their evidence don't take on a life of their own to form national law (except possibly in an occasional very high-level court/case). All they are saying is that if they have evidence that this person is a pedophile or child pornographer, then they are going to use every resource they can to get a conviction, as well they should. I don't think the fact that PGP (or any other encryption) was one of the many pieces of evidence against this man is anything to panic over.

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 15:04 UTC (Wed) by huffd (guest, #10382) [Link] (6 responses)

I've just got to ask. Does the judge's ruling include encrypted mail like mozilla's Enigmail?

While the perv probably deserves a "cell date" with Bubba, the written statements by the judge are in error. I cannot believe the appeals court fell for the same drivel especially if the judge stated PGP as the deciding factor.

They need to explain how in Minnesota or anywhere else for that matter that encryption is a criminal tool. If it ever happens, our worst fears will be realized.

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 15:08 UTC (Wed) by gowen (guest, #23914) [Link] (5 responses)

I cannot believe the appeals court fell for the same drivel especially if the judge stated PGP as the deciding factor

Where did you get the idea the judge "stated PGP as the deciding factor." As the article says

Levie's conviction was based on the in-person testimony of the girl who said she was paid to pose nude, coupled with the history of searches for "Lolitas" in Levie's Web browser

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 15:42 UTC (Wed) by huffd (guest, #10382) [Link] (4 responses)

"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," Judge R.A. Randall wrote in an opinion dated May 3.

And don't paraphrase me I said "IF" GET IT "IF"! It was the deciding factor.

The point being encryption is not a criminal tool and should not have been mentioned in the opinion. If the judge had omitted it whether or not he himself felt it substantiated the ruling there wouldn't have been an appeal on that basis. On the other hand if PGP did substantiate the evidence then they were WRONG because they NEVER EVER proved that it was used in a criminal enterprise! U knead a legal edumatation

Minnesota court takes dim view of encryption (News.com)

Posted May 25, 2005 16:09 UTC (Wed) by farnz (subscriber, #17727) [Link] (3 responses)

Hammers aren't criminal tools either. Yet if I was seen wandering down the high street with a hammer ten minutes before a shop window was smashed, then the hammer is signifcant, even if there's no evidence that a hammer smashed that window.

All the judge said is that, when deciding if someone's up to no good, encryption tools can be taken into account. In this case, the point is that there's other evidence that he was engaging in the manufacture of child pornography, and the presence of a tool that can be used to hide evidence could be significant.

Minnesota court takes dim view of encryption (News.com)

Posted May 26, 2005 3:53 UTC (Thu) by xoddam (subscriber, #2322) [Link] (1 responses)

the presence of a tool that can be used to hide evidence could be significant.

I have a flushing toilet, I guess that could be significant too.

Minnesota court takes dim view of encryption (News.com)

Posted May 26, 2005 7:20 UTC (Thu) by farnz (subscriber, #17727) [Link]

It could well be; in this case, the prosecution were claiming that on top of all the other evidence, there was the possibility that he'd used PGP to hide images on his computer, or to hide communications with other paedophiles.

If they had evidence that you'd been dealing cocaine, and there were traces of cocaine in your bathroom, they could argue that the presence of a flush toilet was significant, as you could have used it to dispose of your stash when you were raided. Same principle applies.

Minnesota court takes dim view of encryption (News.com)

Posted May 26, 2005 9:52 UTC (Thu) by nix (subscriber, #2304) [Link]

Another example: there've been trials of murderers where one piece of evidence was the presence of knives in their kitchens.

I've got large sharp carving knives in my kitchen, but this does *not* make me a suspect in a murder case. But if someone was found in small pieces in my garden, the fact that I own large sharp carving knives would possibly become significant.

(Disclaimer: to the best of my knowledge the only things in small pieces in my garden were left there by cats and harriers. ;) )

Did anyone read the article?

Posted May 25, 2005 17:58 UTC (Wed) by JoeBuck (subscriber, #2330) [Link]

The jury did not convict this man because he had PGP. They convicted him because the nine-year-old girl he took the nude photos of testified against him. Now he's trying to get a new trial based on the judge allowing the prosecutor to tell the jury that he had PGP and insinuate that he was therefore up to no good. But the prosecutor did not really need that evidence.

Here's the money quote:

The court didn't say that police had unearthed any encrypted files or how it would view the use of standard software like OS X's FileVault. Rather, Levie's conviction was based on the in-person testimony of the girl who said she was paid to pose nude, coupled with the history of searches for "Lolitas" in Levie's Web browser.

Also notice that the article is by Declan McCullagh. I appreciate that Declan cares so much about liberty and freedom, but sometimes he's on a hair trigger about such things, meaning you have to read him carefully. In this case, he positioned the paragraph I quoted above at the bottom, and an inflammatory headline was chosen (maybe not by him).

Minnesota court takes dim view of encryption (News.com)

Posted May 27, 2005 18:09 UTC (Fri) by giraffedata (guest, #1954) [Link]

There's a reason that hasn't been discussed so far that it may be bad for a court to be able to consider the presence of PGP as weighing in favor of guilt.

As so many have said, the presence of PGP does increase the likelihood of guilt.

But in legal process, there are certain kinds of evidence that are protected -- you can't use them even though they provide useful information. For example, in the US, when a person refuses to answer the question, "did you take this woman's purse?", you can't hold that against him, even though it clearly raises his suspicion level compared to the person who answers, "no, I didn't." The reason you can't use it has nothing to do with its validity as evidence. Also, in some jurisdictions, you can't use statements made by a person's spouse, or evidence found in a privacy-invading search.

So some people might believe that, in the interest of promoting privacy, society should choose not to consider existence of PGP on one's computer as evidence of guilt even though it is. That way, an innocent person could use PGP without fear of being erroneously convicted of a crime.