Article first published as Your Hard Drive is a Snitch on Technorati.
About a year ago a case involving a Colorado woman , Ramona Fricosu, made tech news when the judge overseeing a mortgage fraud case forced her to decrypt her hard drive. Apparently the prosecution was tipped off that the drive contained incriminating evidence that only she could provide access to.
The Internet went wild when it seemed the 5th amendment had apparently gone out the window. Now before you go running off to Wikipedia, it's the one that says you don't have to incriminate yourself in a court case against you.
This week we had another example of the 5th amendment running headlong into an encrypted hard drive but this time things went a little differently. It seems Judge William E. Callahan wasn't going to force a defendant in a child pornography case to decrypt several of his hard drives.
The judge wrote, "ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination."
The difference between the two cases seems like nothing more than semantics but there was one critical difference. In the Fricosu case, investigators had prior information that the contents of her hard drive contained evidence. In this week's case, investigators were only guessing when it came to the contents of the defendant's multiple hard drives.
If you've ever watched Law and Order or CSI with any regularity you've probably seen at least one episode where the bad guy's lawyer tells the cops, "You're on a fishing expedition." It usually comes up when the defendants lawyer discovers that the police have no proof and are trying to trick the bad guy into incriminating himself.
That's exactly what was going on in Judge Callahan's court this week and the lesson learned was simple. If you've got something to hide don't tell anyone what it is or where it's located. Otherwise, don't bother encrypting your hard drives.
For some, this week's ruling may seem like nothing more than a question of semantics and to some extent it is. Then again, that's what the entire legal profession is built upon. Most criminal law deals with the concept of "intent" and intent is all about semantics.
While the possibility that an accused child pornographer may evade justice due to a technicality we can't forget the importance OF that technicality.
The 5th amendment ensures that anyone who accuses you of breaking the law has the burden of proof. It's the foundation of "Innocent until proven guilty" and law enforcement shouldn't be allowed to take shortcuts because it's convenient.