Judge Orders Defendant to Decrypt Laptop

[westkybitcoins]

This is clearly a breach of the 5th Amendment. IANAL either, but I am a rational human being with some common sense. When arrested, you're not obligated to lift a finger to help the prosecutors. You're (supposed to be) free to keep your mouth shut the entire time. But suddenly some judge thinks it's appropriate to require someone to aid their efforts at obtaining information?

nor shall be compelled in any criminal case to be a witness against himself

That judge's order is total BS, a trampling of the spirit and letter of the 5th, and just flat-out contemptible.

Makes me wonder when was the last time the judiciary got away with demanding someone produce a key to a lockbox, and holding them indefinitely until said key was produced.

"But your honor, I *thought* I put the key behind the shed, but I hid so many I honestly don't know where else it could be!"

"Well, that's just too bad for you, isn't it? Life in prison then, for the crime of refusing to self-incriminate. Case dismissed... and let us know when your memory decides to cooperate."

Total BS.

The last time that happened was the last time someone made such a ridiculous statement in court. 

Seriously, you think a judge is going to sit there and allow a common thief to keep his ill gotten gains just by pretending that he doesn't remember where he hid the money? 

I'm a little concerned that the point of that exchange flew right past you.

If the guy really did hide lots of keys (to what, who knows) it's entirely plausible: What if the guy REALLY DIDN'T REMEMBER?

Let's even say it's visibly probable that he's guilty. But the prosecutor wants proof that the $1000 was stashed away just to convince the jury.

Theft of $1000 is... what, under a year in jail? Maybe 6 months?

But the guy gets sent to jail indefinitely because he can't remember something? That's the BS part. Whether or not the judge believes him is irrelevant. The proper principle is innocent until proven guilty, so that we let the guilty go before we trample upon the innocent. And if that judge can't prove the guy really DOES remember, then the very real possibility exists that an innocent person is about to get screwed.

I recently came across a stash of... precious assets that I had squirreled away, and forgotten about. Had someone asked me about it, I wouldn't even remember, never mind recall the location. It sure would have sucked had that location been deemed an important enough part of some case that a judge would have tried to order me to disclose it.

"Your honor, I seriously, *seriously* don't remember!" (Said with a don't-give-a-flip shrug and grin because, really, I don't, and nothing can change that fact, but I can already see where this is going, so screw it.)

"That stash was worth $XXX! That smirk on your face tells me you're just lying. Well, maybe you'll just sit and decide how long you want to stay in jail while your memory comes back. Take him away!"

That's not justice. In no sense of the word.

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[FreeMoney]

Regarding this whole innocent until proven guilty or the other way around, how about we just leave it up to the individuals involved, but imprisoning an innocent person is punishable by the same imprisonment. It's not right at all for someone to be more reckless with another persons freedom than they would be with their own. Not just judges either, working for a facility that uses rules that lets them jail innocents is recklessly negligent. Maybe you can't check out the history of everyone who is locked down, but can certainly look and see if the procedure can lead to false imprisonment and determine if it's likely enough that you'll take the risk yourself.

[Hawker]

If you have gone to court and the court requires it, how can I refuse?

Seriously, that is the exact purpose of courts.  If they couldn't do that, your only option would be a gun.  

[Emphasis mine] Would you please elaborate? To me it almost looks like you're saying the exact purpose of courts is to force people to do pretty much anything regardless of human rights.

You don't have a human right to steal stuff. If you have stolen stuff, you don't have a human right to hide the evidence.  Your whole outlook seems to be based on the idea that one can steal stuff and then hide behind a façade of human rights law.  Thats not the case.

Your choice to change "human rights" to "human rights law", and then call it a facade, is quite telling.  

Do you not believe in any right against self-incrimination at all, or do you believe it just does not apply to the location of damning evidence? I'm arguing for a negative right (to remain silent), not for a positive right (to steal or hide evidence).

Maybe you need to take a step back and think things through.  You have a right to not to incriminate yourself so if a policeman says "Did you steal this car?" you can refuse to answer.  But you don't have a right to hide stuff you have stolen.  If a policeman says "I want to look in your garage for the stolen car." and he has a court order, you have to allow him into the garage.

Does that make it clear enough?

Clear enough?

[Explodicle]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

[Hawker]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

[westkybitcoins]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

[Explodicle]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

[Hawker]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

You really believe that if someone steals something from you, its wrong to insist he returns it ?  You have strange ideas of what justice is.

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

Generally, judges are very slow to lock people up before a conviction takes place.  The example that comes to mind is Judith Miller who took 5 months in jail before she talked.  But if the judge is convinced you are its "won't" not "can't" he does have the power to lock you up.

[westkybitcoins]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

You really believe that if someone steals something from you, its wrong to insist he returns it ?  You have strange ideas of what justice is.

You're still presuming guilt.

If someone legitimately can't remember some fact that is required to prove their guilt, then you don't KNOW they're guilty. You shouldn't be compelling him to be a witness against himself. That's not justice.

If someone legitimately can't remember some fact that isn't required to prove their guilt, then why not prove their guilt without it? Compelling him to be a witness against himself when it's not necessary isn't justice.

If you do prove it, and they still legitimately can't remember, say, the code to a vault full of money, then what are you going to do? Keep them in jail for the rest of their life? That's not justice either.

You're advocating for a methodology that is guaranteed to hurt innocent people, AND to overpunish guilty people.

That's not a just methodology.

[Hawker]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves. 

Again: that's not justice.

You really believe that if someone steals something from you, its wrong to insist he returns it ?  You have strange ideas of what justice is.

You're still presuming guilt.

If someone legitimately can't remember some fact that is required to prove their guilt, then you don't KNOW they're guilty. You shouldn't be compelling him to be a witness against himself. That's not justice.

If someone legitimately can't remember some fact that isn't required to prove their guilt, then why not prove their guilt without it? Compelling him to be a witness against himself when it's not necessary isn't justice.

If you do prove it, and they still legitimately can't remember, say, the code to a vault full of money, then what are you going to do? Keep them in jail for the rest of their life? That's not justice either.

You're advocating for a methodology that is guaranteed to hurt innocent people, AND to overpunish guilty people.

That's not a just methodology.

We are actually in agreement.  No-one should be forced to testify against themselves.  And no-one should be allowed to obstruct justice by hiding evidence.  What I can see from your replies is that you didn't read the article.


"The judge in the Colorado case said there was plenty of evidence — a jailhouse recording of the defendant — that the laptop might contain information the authorities were seeking.

The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”"

Ramona Fricosu has the trading history on her laptop so she has to give access to it.  She has been offered immunity for parts of the contents of the laptop but they do need to get the details of her mortgage applications. 

[westkybitcoins]

You're still presuming guilt.

If someone legitimately can't remember some fact that is required to prove their guilt, then you don't KNOW they're guilty. You shouldn't be compelling him to be a witness against himself. That's not justice.

If someone legitimately can't remember some fact that isn't required to prove their guilt, then why not prove their guilt without it? Compelling him to be a witness against himself when it's not necessary isn't justice.

If you do prove it, and they still legitimately can't remember, say, the code to a vault full of money, then what are you going to do? Keep them in jail for the rest of their life? That's not justice either.

You're advocating for a methodology that is guaranteed to hurt innocent people, AND to overpunish guilty people.

That's not a just methodology.

We are actually in agreement.  No-one should be forced to testify against themselves.  And no-one should be allowed to obstruct justice by hiding evidence.  What I can see from your replies is that you didn't read the article.


"The judge in the Colorado case said there was plenty of evidence — a jailhouse recording of the defendant — that the laptop might contain information the authorities were seeking.

The judge ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”"

Ramona Fricosu has the trading history on her laptop so she has to give access to it.  She has been offered immunity for parts of the contents of the laptop but they do need to get the details of her mortgage applications. 

Hmm. It would appear that the article I read (from a Facebook post) differs from this one in a few points.

That said, I still don't think we're in as much agreement as we'd prefer. I'm actually challenging the core principle, that the judge has the right to order information be given in the first place, under any circumstance, regardless of how common it is the modern-day USA. The fact that the data can't be used against her (at least until someone, maybe this judge, overrides that later) doesn't address that.

Let me try to drive it home, boil it down to one big question:

If she claims she doesn't remember the password, or she says for some reason she can't decrypt the drive, or if she says the password is on a Post-It note which is missing from her desk and she says "Well, then I don't know who took it," then how long should she remain in jail?

"Until she remembers," of course, would mean "for the rest of her life, if necessary."

Is that what you feel is justified?

[Hawker]

...snip...

Hmm. It would appear that the article I read (from a Facebook post) differs from this one in a few points.

That said, I still don't think we're in as much agreement as we'd prefer. I'm actually challenging the core principle, that the judge has the right to order information be given in the first place, under any circumstance, regardless of how common it is the modern-day USA. The fact that the data can't be used against her (at least until someone, maybe this judge, overrides that later) doesn't address that.

Let me try to drive it home, boil it down to one big question:

If she claims she doesn't remember the password, or she says for some reason she can't decrypt the drive, or if she says the password is on a Post-It note which is missing from her desk and she says "Well, then I don't know who took it," then how long should she remain in jail?

"Until she remembers," of course, would mean "for the rest of her life, if necessary."

Is that what you feel is justified?

To be locked up for any crime, the prosecution needs to be prove beyond all reasonable doubt that the defendant is guilty.  If they do that and if the amount stolen is significant, then lock her up as long as it takes.  There is no way someone who has gained several million dollars by way for mortgage fraud should be able to do a few month custody for dishonestly filling in forms and keep the money for when they are released.

[westkybitcoins]

...snip...

Hmm. It would appear that the article I read (from a Facebook post) differs from this one in a few points.

That said, I still don't think we're in as much agreement as we'd prefer. I'm actually challenging the core principle, that the judge has the right to order information be given in the first place, under any circumstance, regardless of how common it is the modern-day USA. The fact that the data can't be used against her (at least until someone, maybe this judge, overrides that later) doesn't address that.

Let me try to drive it home, boil it down to one big question:

If she claims she doesn't remember the password, or she says for some reason she can't decrypt the drive, or if she says the password is on a Post-It note which is missing from her desk and she says "Well, then I don't know who took it," then how long should she remain in jail?

"Until she remembers," of course, would mean "for the rest of her life, if necessary."

Is that what you feel is justified?

To be locked up for any crime, the prosecution needs to be prove beyond all reasonable doubt that the defendant is guilty.  If they do that and if the amount stolen is significant, then lock her up as long as it takes.  There is no way someone who has gained several million dollars by way for mortgage fraud should be able to do a few month custody for dishonestly filling in forms and keep the money for when they are released.

Well, I agree with that last sentence. One would hope she would be watched, and prosecutors would swoop in as soon as signs of her ill-gotten gains appear.

But again, "as long as it takes" potentially means forever, if she for whatever reason no longer can provide that unencrypted data. That potentially means her punishment for forgetting, or for losing her password, or just for being stubborn about it, would be far more severe than the punishment for the actual crime itself.

That sets in motion a system whereby anyone can be over-punished in such a manner. Actually, where such a thing is guaranteed to happen to some people. That's an inherently unjust system, and one I can never support (which is consistent, because I *know* I'll be furiously protesting were I caught in such a situation where info was demanded that I couldn't provide even if I wanted to.)

As far as this case in particular, I have no doubt that after punishment any attempt to use the funds would be obvious, unless she slowly spent it on trivial things, which wouldn't even be worth cracking down on.

Actually, I'm a big proponent of restitution as punishment anyway. If instead of jail time she were charged to pay back what she owed, plus interest, plus damages, plus court costs and finally a fee just because she's a thief; and were that obligation held over her regardless of where she worked or what she did, she'd have every incentive to give up any ill-gotten gains. And if she couldn't? Well, tough, you were found guilty even without the files, and you need to pay it back, so get hopping....

[Explodicle]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves.  

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

Generally, judges are very slow to lock people up before a conviction takes place.  The example that comes to mind is Judith Miller who took 5 months in jail before she talked.  But if the judge is convinced you are its "won't" not "can't" he does have the power to lock you up.

That didn't answer my question. How did the judge become convinced that I remember something? I should hope that before punishing anyone for any reason they have proof, and I can't think of a legal way to prove someone remembers something.

[JusticeForYou]

If I've forgotten where I left the garage door opener, how long should I wait in jail?

You shouldn't.

Now if you are in court and the judge is of the opinion you are lying about "forgetting," you can expect to remain in jail until your memory improves.  

How can the judge arrive at this opinion? Does he administer a polygraph, or does he just assume that if I remembered it before, I remember it now?

Generally, judges are very slow to lock people up before a conviction takes place.  The example that comes to mind is Judith Miller who took 5 months in jail before she talked.  But if the judge is convinced you are its "won't" not "can't" he does have the power to lock you up.

That didn't answer my question. How did the judge become convinced that I remember something? I should hope that before punishing anyone for any reason they have proof, and I can't think of a legal way to prove someone remembers something.

The only example that I could think of is: If the defendant says: Yes, I know but I am not going to tell you.  Or a reporter that refuses to reveal a source. Which, by the way, many reports would love to go to jail because it is a badge of honor that will get them many more sources.

[Hawker]

...snip...

That didn't answer my question. How did the judge become convinced that I remember something? I should hope that before punishing anyone for any reason they have proof, and I can't think of a legal way to prove someone remembers something.

Maybe you can't because you are in debating mode. 

In the real world, if you are in court and the judge has ordered you to disclose something, generally you are going to jail if you don't comply.  That's how the law works - without that sanction, there would be no law enforcement and you'd need to go after thieves yourself.

[JusticeForYou]

In the real world, if you are in court and the judge has ordered you to disclose something, generally you are going to jail if you don't comply.

Partly true.

  The Judge orders you to disclose something you don't know. That precedent would be dangerous as it would circumvent a trial. If you don't know something, you can't disclose it.

For example: You have your Private Key to your wallet.dat file. You accidentally destroyed that file. You are being prosecuted for 'laundering' and the judge orders you to disclose your private key. It was in your possession, you had control of it, you however lost it.

The Judge orders you to reveal your private key. He doesn't believe you don't know it. So off to jail for life, it is for you.

[Hawker]

In the real world, if you are in court and the judge has ordered you to disclose something, generally you are going to jail if you don't comply.

Partly true.

  The Judge orders you to disclose something you don't know. That precedent would be dangerous as it would circumvent a trial. If you don't know something, you can't disclose it.

For example: You have your Private Key to your wallet.dat file. You accidentally destroyed that file. You are being prosecuted for 'laundering' and the judge orders you to disclose your private key. It was in your possession, you had control of it, you however lost it.

The Judge orders you to reveal your private key. He doesn't believe you don't know it. So off to jail for life, it is for you.

I suggest you tell the judge you lost it.  If he is unreasonable, you have an immediate right to have his decision reviewed and he can't lock you up during the review.

What puzzles me is that you think computers are somehow special.  Saying you don't remember your password is no different to saying you don't remember where you buried a bag of evidence.  Its a dumb strategy.  The correct approach is it say nothing at all.  If Ramona Fricosu has left emails on her laptop proving that the mortgage applications were based on fake references, why should she be able to keep the money just because the details are stored electronically as opposed to on a notebook she buried somewhere?

[JusticeForYou]

What puzzles me is that you think computers are somehow special.  Saying you don't remember your password is no different to saying you don't remember where you buried a bag of evidence.  Its a dumb strategy.

What puzzle's me, is that you think an unfound bag of evidence, IS evidence when it is nothing but speculation that there is evidence.

[Explodicle]

I can't think of a legal way to prove someone remembers something.

Maybe you can't because you are in debating mode. 

I can only hope that my judge has better mind-reading powers than you.