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This came to my attention via a colleague who forwarded a Washington Post story. It's another one of those modern day Internet dilemmas that may ultimately become legislative turf.
Here's the story:
Sebastien Boucher, a 30-year-old dry-wall installer from New England, is a Canadian by birth, but a legal resident of the U.S. He was driving from Canada to Vermont when he was stopped at the border. A laptop was discovered in the back seat.
According the report, Boucher admitted to the border authorities that he owned the laptop. The officers inspected it and found thousands of images on his PC, some pornographic. They also found some files with very graphic names containing references to child porn.
That's where the story gets a bit complicated. Those file names pointed to a part of the disk partitioned as Drive Z. A special agent was then called in to examine the computer further and found that the drive that the images pointed to, Drive Z, was encrypted and inaccessible without a password. Boucher used Pretty Good Privacy, one of the most popular, low-cost encryption programs on the market, to keep Drive Z inaccessible. Next, the agent asked Boucher to type in his password and, according to the court reports, Boucher complied. Some images of graphic child pornography were seen. The computer was confiscated; Boucher was arrested. That was in December 2006.
The Department of Corrections made a mirrored image of Boucher's disk, but of course they couldn't access the images in question without his password. This time Boucher refused to comply, pleading the Fifth Amendment. Compliance would constitute self-incrimination. The password would create an undeniable link to him and the images on the PC.
Today the FBI still wants to force Boucher decrypt the drive. The FBI's POV, paraphrased from a press quote, is that you shouldn't be able to refuse to give up a password to the authorities since this would encourage criminals and terrorists to encrypt their data, too. But a local U.S. District Court in Vermont ruled that compelling the man to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination.
What a sticky wicket. To my mind Boucher already incriminated himself when he accessed the images for the first agent. I might try taking the files back to Pretty Good Privacy, which may know enough about their key combinations (the root of encyrption softeware) to help decrypt what it encrypted.
So how would you rule? Does taking the Fifth make it safer for others—pornographers, pedophiles, crooks, and terrorists—to do the same? If the government rules to force you to decrypt your data, are they violating your right to privacy?
For other perspectives:
A more detailed report of the arrest is available from Computerworld.
An article in the YaleGlobal Online weighs the legality of searching a person's laptop.
For the serious geeks who want to know more about how Pretty Good Privacy works.
Thursday, January 24, 2008
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Summit judges to refuse to enforce provisions
Akron - Summit County judges will join their counterparts in at least four other Ohio counties in refusing to enforce provisions of the state's new, tougher sex-offender registration law.
The eight judges of Summit's general trial division will act this week .to either issue a stay to block all of the affected cases from moving forward or issue a preliminary injunction in each case they hear
At issue are a host of potential contradictions and constitutional questions arising from the state legislature's attempt to comply with the federal Adam Walsh Child Protection and Safety Act.
Ohio is one of the first to raise its standards to comply with the federal law, which mandates that states act by 2009. But the federal government has yet to issue its final guidelines for adhering to the law. Other states have contemplated not following the federal edict, which could put them in line to lose grant money.
Ohio's law, which went into effect at the beginning of the year, changes the registration requirements for some sex offenders. The state mailed notices about the law to 19,000 offenders, one local judge said.
The law applies retroactively to people whose cases have been through the courts. Critics argue that the new law amounts to added punishment, which defense attorneys say is double jeopardy.
Summit County Common Pleas Judge Elinore Marsh Stormer, the court's administrative judge, said that in some cases, the courts, prosecutors and defendants had reached agreement on the levels of classification and reporting responsibilities, only to see the terms wiped away by the legislature.
The law has also been attacked because it requires juvenile sex offenders to register for life, and in some cases, have their pictures posted in Internet registries. The legislation would also put a financial strain on the law enforcement agencies that have to enforce it.
Summit County Common Pleas Judge Patricia Cosgrove said that offenders already required to register under the old law will still have to follow the terms of the old law until the matter is resolved by higher courts.
Stark, Licking, Van Wert and Warren counties already have taken measures similar to Summit's to halt enforcement of at least parts of the law, said Amy Borror, spokeswoman for the Ohio public defender's office in Columbus.
Lorain County Common Pleas Judge James Burge said the judges of his court are staying the reclassifications one case at a time, and shipping the cases to retired Cuyahoga County Judge William Coyne, who will hear them.
Borror said other counties have also taken a one-case-at-a-time approach. In Cuyahoga County, at least one Common Pleas judge and one Juvenile Court judge, have granted injunctions in cases. Lake County Prosecutor Charles Coulson said Tuesday said the justice system there will let higher courts sort out the questions about the law before it is enforced.
There have been 80 challenges to the law filed in the past week in Summit County, Cosgrove said. In Cuyahoga County, about 300 sex offenders have filed civil suits challenging their re-reclassification, Presiding Judge Nancy McDonnell said.
The state public defender's office has a form on its Web site that offenders can use to challenge the law. Borror said her office will help with the legal cost for those who can't afford lawyers.
Authorities in Stark County are hoping that the 5th Ohio District Court of Appeals, seated in Canton, will resolve the issue for the 14 counties in that district. Other judges across the state said they hope the Ohio Supreme Court takes up the questions, providing resolution for everyone.
Stormer said the problem is compounded because the legislature moved quickly, without consulting the sheriffs, prosecutors, judges and other state and county officials who would have to implement the new law.
"While the intent was to retain federal grant money underwriting many criminal justice programs, we have no idea how much it's going to cost to administer the new program, and to address the legal challenges," Stormer said.
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SALEM — A Lynn woman who was serving a prison term at Framingham State Prison last year and contracted a sexually transmitted disease from one of the supervisors, filed a lawsuit seeking an undetermined amount of damages.
Rachelle A. Brewster, 22, filed the court action in Superior Court naming Mark E. Packard, a maintenance supervisor at the prison who lives in Milford, along with the Commissioner of Corrections Harold Clock and Superintendent of MCI Framingham, Lynn Bissonette, negligently responsible for the injury.
Last year while Brewster was an inmate at the prison, serving an 18-month term for armed robbery, she says she engaged in unprotected sex with Packard twice and that he transmitted a pelvic inflammatory disease to her.
As a result of the infection, the complaint states Brewster has undergone extensive medical treatment, including shots, and endured nausea and vomiting.
Brewster maintains Packard is the only individual with whom she had sex with while an inmate.
The suit states she has been advised the condition could produce scarring which may result in her inability to conceive children.
Packard is accused of bragging to his co-workers about his sexual exploits with Brewster, which were reported to the administration and he was terminated from his position.
Brewster says she has suffered — and continues — to suffer injuries and significant emotional harm including nightmares and depression as a result of Packard.
Attorney Alan D. Chipman of Lynn, who filed the complaint in Brewster’s behalf, seeks an undetermined amount of monetary damages for the negligence, careless, grossly negligent conduct and the intentional infliction of emotional distress Brewster endured.
Chipman also accuses Clock and Bissonette of failing to properly select, monitor, train and supervise Packard, which resulted in cruel and unusual punishment to Brewster.
A trial before a jury is requested from the court.
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SAN FRANCISCO - A San Francisco man has filed a $1 million federal civil rights lawsuit against San Francisco police, claiming an officer abused him during an unwarranted strip search in the South of Market neighborhood.
Eric Jones said a plainclothes officer whose identity remains unknown wasn't wearing gloves when he stuck his finger down Jones' pants and touched his rear during a stop near Sixth and Howard streets Dec. 27, 2006, in an apparent search for drugs or contraband.
Jones had told the officer that he wasn't on probation or parole and "that it was not right to search him," said the suit filed Jan. 18 in U.S. District Court in San Francisco. The officer replied that he didn't care, the suit said.
The officer told Jones, "I know you have drugs on you. I'm going to find them. I can tell by the way your heart is beating," the suit said. The officer also felt under Jones' testicles and searched his shoes, but no drugs were found, the suit said.
Alexis Thompson, a spokeswoman for City Attorney Dennis Herrera, declined to comment Wednesday, saying city officials had not had a chance to review the complaint.
"It's such a humiliating thing to have happen to a person," said Jones' attorney, Ben Nisenbaum. "It's not just degrading to (Jones), it's degrading to the officer as well. Why would that person do that?"