ID Theft On The Rise, So Are Misguided Reactions

Because Only Criminals Use Encryption

from the not-a-good-thing dept

Tue, May 24th 2005 4:40pm — Mike Masnick

An interesting, if disturbing, ruling in a Minnesota court case about a guy convicted of child porn suggests that just having the PGP utility on your computer suggests you may be guilty of a crime, because, you know, if you had nothing to hide, why would you encrypt it? (Yes, for the sarcasm impaired, that was sarcasm). The guy in this case was clearly guilty and there was plenty of evidence against him, but there were some questions about whether or not the prosecution was right to include the fact that he had PGP on his computer in the case against him. The case never showed that he had any encrypted files, or that he used PGP to encrypt child porn -- just that he had it on his computer, as if it suggested obvious guilt. This point was appealed, but the court said it is relevant information. What's scary, of course, is how easy this ruling could be applied in other cases. If you're accused of any computer crime, and you happen to use PGP for legitimate purposes, just having it can be used against you in court.

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11 Comments

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secret-squirrel, 24 May 2005 @ 5:40pm

Problems with evidence in all trials
No matter what you think of the current Michael Jackson prosecution, and the upcomming one against Phil Spectre, it is troubling that the prosecution can bring in the types of uncorroborated evidence that they can in those cases.

In the MJ case, the law allows the prosecution broad powers to enter what would be called prejudicial evidence, in the furtherance of showing prior bad acts for some of the crimes shown. But on the other side, which you may find yourself on some day, you are only guaranteed protection in a criminal matter when the prosecution alleges a case about all the counts you have against you at the time, and you can confront the evidence or accusers in court.

Prior bad act evidence has gotten fairly far afield nowdays by allowing this stuff to come in. The latest thing against phil spectre is that not only does he have to show whether he is guilty of the crime he is accused of, but now has to deal with a bunch of other women who say he pulled a gun on them. No other things have to be done by the prosecution to bring that into the trial record against him, not for pulling the guns on those women, but to show how bad he is and that he may have had a disposition to do the crime he is charged with.

so he has to now in his defense show he didn't do the other acts, not assume there is a presumption of innocence except beyond a reasonable doubt there.

So this PGP thing is very similar to that sort of reaching.

Everyone can be horrified by the acts against children and molesters, but we all suffer when we have gone the easy way in the law which is to weaken all our protections against overzealous prosecutors.

The use of mearly having PGP, or later who knows, bit torrent will be in and of itself allowable without a prosecutor having to show it's relevence before bringing it before the jury.
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Beck, 24 May 2005 @ 6:15pm

Encryption Password
The question I would like answered is whether one can be compelled to disclose the password that was used to encrypt a file.

Last time I checked, I don't think a legal precedent had been set yet.
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Hans Mast, 24 May 2005 @ 6:35pm

No Subject Given
The ruling was correct. All that was ruled is that it could be admitted into the evidence. If the judge would have ruled against it, it would have set a dangerous precedent that might have excluded vital information in a case down the road.

If the insinuation that having PGP was ridiculous and irrelevant to the case, the defense will be screaming that fact. Let the jury decide. That *is* what they're there for.
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Anonymous Hero, 24 May 2005 @ 8:11pm

Re: No Subject Given
Let the jury decide. That *is* what they're there for.
By that reasoning, there should be no rules of evidence.
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Jojo, 25 May 2005 @ 1:41am

Re: No Subject Given
Puh-leeze.. Anyone using Win2k/XP has built-in file/folder encryption that comes with the OS. It's called EFS. See: http://tinyurl.com/4xd9v

Is this illegal too?
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DV Henkel-Wallace, 25 May 2005 @ 6:26am

Ironic...
If you're accused of any computer crime, and you happen to use PGP for legitimate purposes, just having it can be used against you in court.
Look at Zimmerman's motivation for writing PGP in the first place: to help people fighting unjust governments around the world....!
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RANDDICKSON, 25 May 2005 @ 9:05am

It's just evidence
Won't even try to discuss the ethics/merits/etc of introducing the software (PGP) as evidence.

But it is logical to allow it as the introduction of evidence which the jury should consider.

To this point, it's the JURY that determines the weight of the evidence. That being said, our jury selection process tends to put the least informed individuals on a jury so whether PGP meant that much to them or not is questionable. Let the prosecutor and defendants lawyers spar on that.

Further to the point; if this kind of thing worries you ... don't ever try to dodge jury duty. You may one day be on trial to be judged by 'a jury of your peers'. Wouldn't it be nice if they were really your peers and not just the poor saps who couldn't find a reason to get out of jury duty ?
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Greg, 10 Oct 2008 @ 12:42am

Contact asap,,,,,,,lost contact
LZ Puntaarenas....qwhhg 10min west......no msg 0141.......
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Anonymous Coward, 29 Sep 2009 @ 3:43pm

Re: No Subject Given
Because all juries are completely informed on what a PGP is and, as well, the finer points of them. *cough* Oh wait...no they aren't.
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Mike, 18 Nov 2009 @ 6:46am

The government must have had some case where a child porn collector or some other sick maniac was using PGP encryption software on their computer and now they have it red flagged. It's just like P2P software, anybody that has it must be a criminal...although, in that case, it is usually a more accurate assumption.
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Moose, 12 Feb 2011 @ 9:52am

Re: Encryption Password
No need, the court (police) can have the maker of the encryption give them the keys to decrypt any file. So, anything you encrypt is pretty much safe unless the police think you committed a crime. they will ask i'm sure for the password but in the end will not need it since they can get the keys from the maker.
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