posted on Jun, 4 2013 @ 06:48 PM
Such has been the order against one Jeffery Feldman. Jeffery, a computer and file sharing user from Wisconsin was picked up recently on suspicion of
Child Pornography downloaded from E-Donkey. (Thats a new one..but I presume some have heard of it).
The police came, they saw and they took everything the Search Warrant properly indicated they could take. No problem so far. When they got all the
evidence back to look at, the problem became apparent. Jeffery thought of that, it would seem. A portion of his drives are encrypted and the police
can't or won't crack the encryption.
If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled
self-incrimination being violated?
That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite
imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues
of the wired era.”
The Gitmo treatment for simply refusing to decrypt files and effectively self incriminate? Interesting one there. As it happens, an update to the
story today shows the Judge has reconsidered....temporarily, while he considers the full constitutional issues involved here. (Good move, Judge)
The magistrate in the case stepped aside Monday after Shellow argued that only U.S. district court judges, not magistrates, have the legal power
to issue decryption orders. As of now, the new judge in the case has not decided whether to uphold the magistrate’s order.
U.S. Magistrate William Callahan Jr. initially said the Fifth Amendment right against compelled self-incrimination protected Feldman from having to
unlock his drives.
But last month, prosecutors convinced Callahan to change his mind. Among other reasons, the authorities were able, on their own, to decrypt one drive
from Feldman’s “storage system” and discovered more than 700,000 files, some of “which constitute child pornography,” the magistrate
Why oh why is it the most critical cases of Constitutional Law seem to involve the absolute least sympathetic defendants and cases? It's hard to even
suggest something which may benefit a kiddie porn user. Just as I'm sure it was awfully hard to find in favor of the Klu Klux Klan for their right to
parade down Main St. in Skokie, Illinois after the town vehemently opposed and then took the whole thing to court.
Alas, the subject isn't as important as the principle, IMO. What is the opinion here? Should the right to hold to the 5th Amendment against
self-incrimination hold to not releasing passwords for the decryption of your own files? Should it matter or should it be assumed that a refusal is
indicating the presence of something to hide or fear? This issue has been argued before on standing the 5th for verbal testimony and other forms. In
verbal statements, the 5th is almost absolute in terms of not being forced to give evidence against one's own interests.
In this case, it would appear to be the argument that because it's electronic and not verbal, it doesn't warrant the same protections?
So really, we have two issues here. Should the 5th Amendment apply? If it doesn't apply and someone still refuses....should they be locked up without
trial or due process for what amounts to indefinite detention?
edit on 4-6-2013 by Wrabbit2000 because: (no reason given)