Your Laptop is Not Your Mind, Says Judge

By Veronique Greenwood | January 26, 2012 1:05 pm

If you think of your personal computer as almost an extension of yourself, a recent federal court ruling in Colorado sounds a little disturbing. The court has ordered that a woman decrypt files on her laptop so they can be used by prosecutors against her. The woman, who is being tried for mortgage fraud, argued that this is a violation of her Fifth Amendment right to keep from testifying against herself, but the court sees the matter differently. Timothy Lee at Ars Technica’s explanation of the problem gets to the heart of it:

In previous cases, judges have drawn a distinction between forcing a defendant to reveal her password and forcing her to decrypt encrypted data without disclosing the password. The courts have held that the former forces the defendant to reveal the contents of her mind, which raises Fifth Amendment issues. But Judge Robert Blackburn has now ruled that forcing a defendant to decrypt a laptop so that its contents can be inspected is little different from producing any other kind of document.

For some, being forced to decrypt your computer and handing over your password to investigators so they can decrypt it might not seem that different—what’s hidden by your password might well feel as much a part of your mind as your password. But when you think about the precedent a ruling in the other direction might set, things get cloudier. The Department of Justice argues that if encryption is all that’s required to keep documents out of the hands of the courts, then potential child pornographers, drug smugglers, and others can refuse to hand over evidence on the grounds that it’s encrypted. Hmmm.

Another case from this week that shows the difficulty of aligning the modern sense of privacy with the law. The Supreme Court ruled that sticking a GPS device on a suspect’s car to track his whereabouts, without a warrant, is unconstitutional. But the court was divided as to why, on a very important point.

Justice Scalia and four other justices, mostly more conservative members of the court, argue that it’s the physical placement of the device that’s a violation here. “The Government physically occupied private property for the purpose of obtaining information…We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted,” Scalia wrote in the majority opinion. But the other four justices got behind Justice Alito’s minority concurring opinion that tracking anyone via GPS even when physical intrusion isn’t required—for instance, tracking people using the GPS in most phones—without a warrant should be considered unconstitutional. But it’s Justice Scalia’s version that has the weight of law. Tracking you by watching your phone’s perambulations without getting a warrant is still legal.

John Villasenor at Scientific American has a pithy, and sobering, explanation of why this ruling doesn’t really make us any safer from future Fourth Amendment violations, given the way technology works:

For all of us, and not only for criminal suspects, the days when being tracked is the exception rather than the rule are drawing to a close. To the extent that our location on January 10, 2014—or, for that matter, on January 10, 2012—remains private, it is not because the records to remove that privacy do not exist, but only because no one cares sufficiently to access them. Inevitably and inexorably, we are building an infrastructure that enables location surveillance decisions to be made retroactively, reducing the need to determine in advance who should be surveilled.

In other words, we’re all being tracked, or will be tracked in the near future. The problem going forward will be controlling who has access to that information. Sneaking up to a car and slapping a tracker on it is fast becoming an obsolete way to define intrusion.

CATEGORIZED UNDER: Technology, Top Posts
  • Jessica

    I was expecting that they would rule that she had to decrypt her laptop, otherwise anyone could get away with almost anything just by encrypting their files. However, the part about the government not needing a warrant to track your location by your phone’s GPS is creepy. Big Brother is watching you.

  • Zack

    One presumes this means the crypto she was using is pretty good if even the DoJ couldn’t break it (presumably they tried before going to court to try to force the woman to decrypt it). So what was she using?

  • Iain

    Wouldn’t any encryption program using randomly generated 128 character prime numbers do the trick?
    There was a program available a few years ago that had a public encryption key and a private decryption key that the US Gov was against because they couldn’t crack it this side of doomsday, I forget what it was called though.

  • Sandra Wherley

    I use a password grab the rubber hose! They would have to get a warrant. Oh my Constitution where are you abused. I am not pro crime, I sometimes think the ones who are supposed to set the “good” example are more criminal than the criminal.

  • mike

    Normally I don’t throw hollywood into these types of comments, especially as we’ve all seen “enemy of the state” by now. Yet they also gave us a much less promoted, still creepier (given the science behind it, and government’s nebulous (or nefarious) dealings with the constitution), but this article reminded me of one worth watching to get your heart rate up and paranoia boiling: The Listening.

  • microblogger

    What with all the stress of what’s going on she forgets her password, then what?

  • joab

    then they will be required to waterboard her , burn her with cigarettes, shock her with electricity, and force her to listen to candidates speeches and debates

  • Veda

    Even if a person’s innermost feelings or thoughts were to be ‘accessed’ through his/her computer/laptop– it still amounts t both to ‘wrongful means of obtaining personal information’ and as also ‘hearsay’… It is more in the mode of evesdropping – I suppose. Hence no legal court should take note of it as any rightful or right information.

  • John

    This is not correct. It wasn’t a supreme court ruling, it was just a federal judge in Colorado. Hopefully it’ll win its appeal and make it to the SCOTUS, though. It’s fascinating in that it would force them to effectively make a decision on what has been called the “extended mind hypothesis.”

  • Cody

    mike, I just watched the trailer for “The Listening” and wow, looks very interesting.

    microblogger, I imagine after that they slap some sort of ‘interfering with an investigation’, ‘tampering with’ or ‘destruction of evidence’, or similar charge against her—though I would hope such charges would require them to prove beyond a reasonable doubt that she has such incriminating documents in the first place, which doesn’t seem to leave much room for actually needing those documents.

    It reminds me of the weird limbo we’ve put a bunch of ‘suspected terrorists’ in, with claims of not enough evidence for conviction, but too much to let them go. I think probably the patients have taken over the asylum at this point—illogic abounds.

  • Gregg

    The movie ‘the listening’ describes a procedure for listening from a hardwire phone. This is old school.
    Even though the handset is on the cradle the important part is not that the microphone is disconnected… but the earpiece, is a speaker, is connected and can function as a microphone. They just listen to the other side of the duplex connection to the phone. Simplex is single sided conversation with the command ‘over’ allowing you to switch from transmit to receive. Duplex means both transmitting and receiving can be done at the same time.

    All they did was turn the earpiece into a microphone because it is not switched off when placed in the cradle. Vibrations in the room are picked up by the earpiece speaker and transmitted like a microphone to whoever is listening.
    This was known in the 40’s and 50’s and many spies were able to listen to what was going on in a room with a hard wire phone.

  • Veronique Greenwood

    @John, correct. Thanks for the correction!

  • Hershele Ostropoler

    It makes sense to me that the fact that something is encrypted does not automatically place it under the aegis of the Fifth Amendment. Something like a diary, on the other hand, is whether it’s on the computer or not, encrypted or not.

  • nowuccas

    I am hypothesising that there is a way of encrypting information such that there are 2 solutions to the decoding process, according to the password used, 1 being innocuous, the other not.

  • DS

    So what ever happened to the burdon of proof being on the prosecution? Maybe I’m reading into this incorrectly, but isn’t this saying that a prosecutor could go into my house and force me to decrypt my computer. Then if they find some incriminating evidence, they can go after me. Just because they may not be doing it now doesn’t mean they won’t. The supreme court needs to overturn this. Make the prosecutors have a case first.

    If the supreme court ruled that the GPS thing wasn’t considered a “search” I would make it a point to plaster GPS’s on every single judge and police officers’ cars and set up a website where everyone could monitor them. Because after all, it’s not a search. Unfortunately it won’t matter because in the future, you won’t need the GPS, you could just set up some other non intrusive way to keep track.

  • Al Irvine

    If this decision holds up, then I guess that they can order anyone to tell them where they have hidden any evidence of their guilt?

  • NA

    2 issues

    1) A judge ordered the decryption. This is in effect a warrant.

    2) The real issue is previously any person could take the 5th to keep from revealing anything they “know” if it could incriminate them. This covered everything from “I did it” to “The body/Key evidence is at location X” the only option to investigators was to secure immunity for the person that the information/results would/could not be used against them. As a result there would be no possibility of self incrimination as the suspect was now immune.
    However, now (at least in encryption) a person can be ordered to unencrypt the device and there by give police access to the evidence with the only immunity being that “we won’t tell the jury that you unencrypted it”.

    In essence there is two ways to look at the situation:
    1: the encryption key is something you know (such as “I am guilty, or “the key evidence is at X” and so you do not have to reveal the information if you take the 5th
    2: The encryption key is like a physical key IE property. Which you can be ordered to turn over to the police to be examined if they get a warrant, or they can simply demand if you have on you at the time of your arrest.
    The judge chose to look at it like a physical key.


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