UPDATED 09:20 EDT / APRIL 24 2013


US Judge Rules Data Encryption Makes Perverts Untouchable

We all know that protecting our digital data is important, but that doesn’t stop most of us from using lame passwords or just not bothering to do so at all. However, a recent ruling in the legal case of a suspected child porn distributor might just prompt some people to have a rethink. As it turns out, there really is every reason to use the highest level of encryption possible, and not just in case someone should steal your laptop. In fact, it’s the criminals themselves who should be doing the encrypting, most especially if they have something they need to hide.

When it comes to cracking passwords and getting their hands on encrypted information, the FBI’s computer experts are some of the best in the business. But apparently, they’re not quite good enough, at least not in the case of suspected child-born hoarder Jeffrey Feldman.

As reported by Wired.com, details about the case are a little scant, but what it boils down to is that Feldman is believed to have incriminating evidence stored on his laptop that would help authorities nail him on the kiddie-porn charge he’s currently facing. Only problem is, the Feds can’t actually get into that laptop to find out, because Feldman has locked it down with sophisticated encryption that’s baffled its best computer experts for over four months.

To resolve the issue, the Feds ended up going to court to obtain a decryption order against Feldman that would legally obligate him to give up his password under threat of jail. One might think that it would be a pretty clear cut case – Feldman is suspected of hoarding child porn after all, but apparently that isn’t so. In a surprising ruling, the judge actually ruled in Feldman’s favour, refusing to issue a decryption order, citing the Fifth Amendment right against self-incrimination that protects all criminals suspects, even the most unsavoury ones.

Wired.com quotes the judge in delivering his verdict:

“This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with ‘reasonably particularity’—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.”

Clearly then, its a case of what the government doesn’t know with absolute certainty can’t hurt you. Feldman’s case had a different outcome to a similar case last year involving a woman accused of fraud, whose laptop was believed to contain incriminating evidence against her. In that case, a judge ordered Romano Fricosu to decrypt her laptop for investigators, but the crucial difference was that investigators had solid evidence that incriminating data was stored on her hard drive. In Feldman’s case however, authorities merely ‘suspect’ that his laptop contains child porn, but they don’t have concrete evidence to prove their suspicions.

The implications of this ruling are more than a little bit worrying. Essentially, it could well open up a loophole that sees hundreds of child porn suspects escape from justice, simply by locking up their laptops and refusing to allow anyone access. So long as criminals are smart enough to encrypt their data in a way that law enforcement cannot access it, the onus is on investigators to come up with solid evidence that their data contains incriminating evidence – mere suspicion, even if the file names indicate illegal content is stored within them, is no longer enough.

To date, no one has raised this issue with the Supreme Court, and it’s not clear if the FBI will attempt to do so this time around. But considering that this loophole is most likely to be exploited by some of society’s most unsavoury individuals, someone really needs to find a way of closing it, before anyone other suspects can escape justice.

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