New Argument in Forced-Decryption Case: Defendant’s Memory Is Ticking Clock

Federal prosecutors are urging a federal judge to demand a Wisconsin man immediately decrypt several hard drives they believe contain child pornography.

The authorities have been litigating the constitutionality of the decryption issue for months, and want the suspect, Jeffrey Feldman, to decrypt the drives before he forgets the passwords. Federal prosecutors say Feldman can, even after decrypting, continue litigating his claim that the Fifth Amendment protects him from having to unlock at least seven hard drives in the case.

“As more time passes, it is increasingly possible that Feldman could forget his passwords, and currently-encrypted evidence may be lost as a result,” federal prosecutor Karine Moreno-Taxman wrote in a brief filing (.pdf) Friday. “The Court can reduce this risk by requiring Feldman to provide the Court with the decrypted contents of his hard drives now, ex parte and under seal, so that they can be securely retained pending the adjudication of the Fifth-Amendment question.”

The suspect’s attorney, Robin Shellow, scoffed at the government’s proposal, saying it was a backdoor attempt to get his client thrown in jail immediately. That’s because, she said, Feldman is not going to decrypt his drives, no matter what, meaning the government’s offer essentially hastens a potential contempt-of-court charge.

“My client is not giving up his Fifth Amendment right, period,” she said in a telephone interview today. “This is pressure: ‘We’re gonna throw you in jail and see how you like it while we litigate it.’”

In the end, she said, “We’re not decrypting.”

The Supreme Court has never decided the issue of whether decryption orders, which are rare, breach the Fifth Amendment right against compelled self-incrimination. The issue is likely to become a more commonplace legal flap as the public slowly embraces a technology that comes standard today on most computer operating systems.

What’s more, encryption has recently been thrust to the public’s attention in the wake of the NSA Spygate scandal as Americans consider looking for effective ways to scramble their communications from the government’s prying eyes.

The Wisconsin decryption flap has been in court since April, after the authorities seized the drives from the computer scientist’s Wisconsin apartment. A magistrate had originally blocked the government’s efforts in ordering Feldman to decrypt the drives. The magistrate subsequently changed his mind, but was removed from the case on procedural grounds — leaving the case back to square one with no end in sight.

Shellow claims a decryption order is akin to forcing her client to build a case for the government. That’s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.

“Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data,” Shellow wrote in a court filing. (.pdf)

Among the last times an encryption order came up in court was last year, when a federal appeals court rejected an appeal from a bank-fraud defendant who has been ordered to decrypt her laptop so its contents could be used in her criminal case. The issue was later mooted for defendant Romano Fricosu, as a co-defendant eventually supplied a password.

It might not bode so well for Feldman if he eventually claims he forgot his passwords, as the government fears. While that issue has not been addressed in court as it relates to encryption, judges usually view forgetfulness as a “sham or subterfuge that purposely avoids giving responsive answers.”

The authorities believe Feldman downloaded child pornography from the file-sharing e-Donkey network.
By David Kravets

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