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A judge in Colorado yesterday ordered a defendant to decrypt her laptop's hard drive at the prosecution's request, adding new fire to the ongoing debate surrounding consumer technology and the Fifth Amendment. The defendant, Ramona Fricosu, is facing charges of bank fraud, stemming from a federal investigation launched in 2010. As part of this investigation, federal authorities used a search warrant to seize her Toshiba Satellite M305 laptop. Fricosu's legal team had previously refused to decrypt the computer, on the grounds that doing so would violate her Fifth Amendment rights to avoid self-incrimination. On Monday, though, US District Judge Robert Blackburn ruled against the defendant, arguing that the prosecution retained the right to access her device, as stipulated under the All Writs Act -- a law that requires mobile operators to comply with federal surveillance.
This is going to SCOTUS, and I hope the government looses.
A judge in Colorado yesterday ordered a defendant to decrypt her laptop's hard drive at the prosecution's request, adding new fire to the ongoing debate surrounding consumer technology and the Fifth Amendment. The defendant, Ramona Fricosu, is facing charges of bank fraud, stemming from a federal investigation launched in 2010. As part of this investigation, federal authorities used a search warrant to seize her Toshiba Satellite M305 laptop. Fricosu's legal team had previously refused to decrypt the computer, on the grounds that doing so would violate her Fifth Amendment rights to avoid self-incrimination. On Monday, though, US District Judge Robert Blackburn ruled against the defendant, arguing that the prosecution retained the right to access her device, as stipulated under the All Writs Act -- a law that requires mobile operators to comply with federal surveillance.
Judge forces defendant to decrypt laptop, fuels debate over Fifth Amendment rights -- Engadget
This is going to SCOTUS, and I hope the government looses.
A judge in Colorado yesterday ordered a defendant to decrypt her laptop's hard drive at the prosecution's request, adding new fire to the ongoing debate surrounding consumer technology and the Fifth Amendment. The defendant, Ramona Fricosu, is facing charges of bank fraud, stemming from a federal investigation launched in 2010. As part of this investigation, federal authorities used a search warrant to seize her Toshiba Satellite M305 laptop. Fricosu's legal team had previously refused to decrypt the computer, on the grounds that doing so would violate her Fifth Amendment rights to avoid self-incrimination. On Monday, though, US District Judge Robert Blackburn ruled against the defendant, arguing that the prosecution retained the right to access her device, as stipulated under the All Writs Act -- a law that requires mobile operators to comply with federal surveillance.
Judge forces defendant to decrypt laptop, fuels debate over Fifth Amendment rights -- Engadget
We need to see the applicable wording of the All Writs Act. Clearly, the feds have a right to have seized her laptop - they had a warrant. At first glance, it would seem that forcing her to decrypt the laptop would be a violation of her 5th Amendment right against self-incrimination. That right may be trumped by the All Writs Act, however - unless, of course, The Supremes find that the applicable provions of the AWA are themselves unconstitutional.
But wait a second - that would mean The Supremes would have to make a ruling that favored persons charged with crimes. Not likely.
This is going to SCOTUS, and I hope the government looses.
Judge forces defendant to decrypt laptop, fuels debate over Fifth Amendment rights -- Engadget
We need to see the applicable wording of the All Writs Act. Clearly, the feds have a right to have seized her laptop - they had a warrant. At first glance, it would seem that forcing her to decrypt the laptop would be a violation of her 5th Amendment right against self-incrimination. That right may be trumped by the All Writs Act, however - unless, of course, The Supremes find that the applicable provions of the AWA are themselves unconstitutional.
But wait a second - that would mean The Supremes would have to make a ruling that favored persons charged with crimes. Not likely.
the court has generally defined "self incrimination" pretty narrowly. it's not that the AWA would "trump" the Fifth Amendment, since legally no statute *could* trump the constitution. But they can continue to narrowly define the right....which I would fully expect them to do, as you noted.
This is going to SCOTUS, and I hope the government looses.
A judge in Colorado yesterday ordered a defendant to decrypt her laptop's hard drive at the prosecution's request, adding new fire to the ongoing debate surrounding consumer technology and the Fifth Amendment. The defendant, Ramona Fricosu, is facing charges of bank fraud, stemming from a federal investigation launched in 2010. As part of this investigation, federal authorities used a search warrant to seize her Toshiba Satellite M305 laptop. Fricosu's legal team had previously refused to decrypt the computer, on the grounds that doing so would violate her Fifth Amendment rights to avoid self-incrimination. On Monday, though, US District Judge Robert Blackburn ruled against the defendant, arguing that the prosecution retained the right to access her device, as stipulated under the All Writs Act -- a law that requires mobile operators to comply with federal surveillance.
Judge forces defendant to decrypt laptop, fuels debate over Fifth Amendment rights -- Engadget
We need to see the applicable wording of the All Writs Act. Clearly, the feds have a right to have seized her laptop - they had a warrant. At first glance, it would seem that forcing her to decrypt the laptop would be a violation of her 5th Amendment right against self-incrimination. That right may be trumped by the All Writs Act, however - unless, of course, The Supremes find that the applicable provions of the AWA are themselves unconstitutional.
But wait a second - that would mean The Supremes would have to make a ruling that favored persons charged with crimes. Not likely.
its legally obtained evidence.
If they had taken a DVD player with a DVD in it that incriminated her it would be the same dont you think?
Its a possesion that contains possible incriminating evidence.
Its not her brain.
We need to see the applicable wording of the All Writs Act. Clearly, the feds have a right to have seized her laptop - they had a warrant. At first glance, it would seem that forcing her to decrypt the laptop would be a violation of her 5th Amendment right against self-incrimination. That right may be trumped by the All Writs Act, however - unless, of course, The Supremes find that the applicable provions of the AWA are themselves unconstitutional.
But wait a second - that would mean The Supremes would have to make a ruling that favored persons charged with crimes. Not likely.
the court has generally defined "self incrimination" pretty narrowly. it's not that the AWA would "trump" the Fifth Amendment, since legally no statute *could* trump the constitution. But they can continue to narrowly define the right....which I would fully expect them to do, as you noted.
I agree with both you and TM on this. I misspoke when I said that a statute could trump the 5th (or any) Amendment. (Although, I did leave myself somewhat of an out by noting that the statute would govern unless the Supremes found it unconstitutional.)
When one considers the trend in the appellate courts over the years regarding forcing defendants to turn over evidence, I suspect that the feds are gong to win this one. Defendants can be forced to provide blood samples, hair samples and other items of evidence that can well be incriminating. The argument there is that the 5th only protects "testimonial" evidence, rather than real or physical evidence. Not too much of a stretch to ooze over into other things defendant's can be forced to provide that border on testimonial evidence. What they usually do is approach the issue from an entirely different angle.
Believe me - the pendulum is WELL to the right when it comes to rights of the accused.
the court has generally defined "self incrimination" pretty narrowly. it's not that the AWA would "trump" the Fifth Amendment, since legally no statute *could* trump the constitution. But they can continue to narrowly define the right....which I would fully expect them to do, as you noted.
I agree with both you and TM on this. I misspoke when I said that a statute could trump the 5th (or any) Amendment. (Although, I did leave myself somewhat of an out by noting that the statute would govern unless the Supremes found it unconstitutional.)
When one considers the trend in the appellate courts over the years regarding forcing defendants to turn over evidence, I suspect that the feds are gong to win this one. Defendants can be forced to provide blood samples, hair samples and other items of evidence that can well be incriminating. The argument there is that the 5th only protects "testimonial" evidence, rather than real or physical evidence. Not too much of a stretch to ooze over into other things defendant's can be forced to provide that border on testimonial evidence. What they usually do is approach the issue from an entirely different angle.
Believe me - the pendulum is WELL to the right when it comes to rights of the accused.
I have high hopes for Sotomayor, she actually seems to hold privacy sacred, and understands how technology can easily be used to accomplish things that were unthinkable a few years ago.
its legally obtained evidence.
If they had taken a DVD player with a DVD in it that incriminated her it would be the same dont you think?
Its a possesion that contains possible incriminating evidence.
Its not her brain.
No. A computer can contain all sorts of things that are actually irrelevant to the prosecution, it is more like them going into your house and taking your diary and/or journal.
We need to see the applicable wording of the All Writs Act. Clearly, the feds have a right to have seized her laptop - they had a warrant. At first glance, it would seem that forcing her to decrypt the laptop would be a violation of her 5th Amendment right against self-incrimination. That right may be trumped by the All Writs Act, however - unless, of course, The Supremes find that the applicable provions of the AWA are themselves unconstitutional.
But wait a second - that would mean The Supremes would have to make a ruling that favored persons charged with crimes. Not likely.
the court has generally defined "self incrimination" pretty narrowly. it's not that the AWA would "trump" the Fifth Amendment, since legally no statute *could* trump the constitution. But they can continue to narrowly define the right....which I would fully expect them to do, as you noted.
I agree with both you and TM on this. I misspoke when I said that a statute could trump the 5th (or any) Amendment. (Although, I did leave myself somewhat of an out by noting that the statute would govern unless the Supremes found it unconstitutional.)
When one considers the trend in the appellate courts over the years regarding forcing defendants to turn over evidence, I suspect that the feds are gong to win this one. Defendants can be forced to provide blood samples, hair samples and other items of evidence that can well be incriminating. The argument there is that the 5th only protects "testimonial" evidence, rather than real or physical evidence. Not too much of a stretch to ooze over into other things defendant's can be forced to provide that border on testimonial evidence. What they usually do is approach the issue from an entirely different angle.
Believe me - the pendulum is WELL to the right when it comes to rights of the accused.
I agree with both you and TM on this. I misspoke when I said that a statute could trump the 5th (or any) Amendment. (Although, I did leave myself somewhat of an out by noting that the statute would govern unless the Supremes found it unconstitutional.)
When one considers the trend in the appellate courts over the years regarding forcing defendants to turn over evidence, I suspect that the feds are gong to win this one. Defendants can be forced to provide blood samples, hair samples and other items of evidence that can well be incriminating. The argument there is that the 5th only protects "testimonial" evidence, rather than real or physical evidence. Not too much of a stretch to ooze over into other things defendant's can be forced to provide that border on testimonial evidence. What they usually do is approach the issue from an entirely different angle.
Believe me - the pendulum is WELL to the right when it comes to rights of the accused.
I have high hopes for Sotomayor, she actually seems to hold privacy sacred, and understands how technology can easily be used to accomplish things that were unthinkable a few years ago.
sotomayor is a "law and order' type. but you can keep hoping.
its legally obtained evidence.
If they had taken a DVD player with a DVD in it that incriminated her it would be the same dont you think?
Its a possesion that contains possible incriminating evidence.
Its not her brain.
No. A computer can contain all sorts of things that are actually irrelevant to the prosecution, it is more like them going into your house and taking your diary and/or journal.
which they'd be allowed to search if they had a warrant to do so.
same as here.
I'm curious as to what penalty she would face if she told them to pound sand.
I have high hopes for Sotomayor, she actually seems to hold privacy sacred, and understands how technology can easily be used to accomplish things that were unthinkable a few years ago.
sotomayor is a "law and order' type. but you can keep hoping.
You should check out her opinion in Jones.
In a conference call, Alliance for Justice Legal Director William Youmans called the former prosecutor "a strong law-and-order judge," adding that she is "attentive, at times, to the rights of the criminal defendant."
Conversely, Grossman said that during her 2nd Circuit confirmation hearings, Sotomayor was criticized for giving sentences that "consistently hit the lower end" of federal guidelines.
In a memo, Wendy E. Long, counsel for the conservative Judicial Confirmation Network, calls the nominee a "soft-on-crime judge who twists the law ... and avoids binding precedent."
The Congressional Research Service pointed out that Sotomayor has sided with both the government and defendants. Overall, the agency thought her criminal law record shows a strict adherence to precedent.
If a judge, QWB, gives warrant for diaries, laptops, other forms of communication to be seized, and prosecution finds the laptop encrypted and the diaries in code, does the 5th protect that privacy?
Where is the difference whether encrypted/cypher and plain text? Does an accused have the right to hide in an object specified in a warrant?
I am not picking a quarrel, just your brain. I really don't have an opinion on this yet.
