What the U.S vs. Fricosu (2011) case "might" mean for future law and Cloud Computing cases regarding encryption!

Introduction



Hello readers! I have been working on school stuff and finally at the end of the week do I now have time to update "The Labyrinth" and discuss "important" developments that you need to know in the field of Law and Technology!. It also helps greatly, that I am taking a "computer law" course this semester as a free elective for my major, along with two other courses in an effort to obtain my Bachelors degree in December, but enough about that. Let me give you a "brief" overview, regarding what I am going to be discussing today. In this week's entry, I am briefly going to summarize the U.S vs. Frisocu (2011) case and how it "may" related to future law cases involving encryption and encryption in the "cloud" i.e the developments we are seeing play out with the Kim Dot Com "strategy" (Note: I am not going to comment on whether or not "Mega" website is "ethical" or not. You should go browse "Slashdot" or other "news" sites, if you want to see "nerds" getting into a fight or a so called "debate" over that. I am just here to present the case for why it "may" or "may not" work "legally". I don't have any vested in the interest in that site, nor do I endorse the views of law enforcement!).

Now, that I have cleared the air regarding my position on the subject, we can now look legal aspects of why encryption and cloud encryption might present new legal challenges in regard to the U.S fifth amendment. Briefly, the fifth amendment states in U.S deals with "self-incrimination". How does this related to encrypted content? It's usually up to a state or federal judge to determine, whether or not the defendant can be compelled to hand over the encryption keys if i.e government has probable cause to believe that the defendant has committed a crime! (Note: "key disclosure laws" vary all over the world, so if you are are reader from outside of the U.S, you will need to check with your countries local law statutes, in order to determine whether or not, your country ACTUALLY has one. I know (without having to cite a reference here) that in i.e India, "key disclosure" falls under the "Information Technology Act" i.e meaning failure to hand over encryption keys can to the government, can land you imprisonment or jail time without any questions asked! This is a very STRICT law, unlike we what we have here in the U.S!). I am briefly going to summarize the U.S vs. Fricosu (2011) below and talk about another case called the U.S vs. Doe (2012). The difference between the two cases will be highlighted and some "conclusions" will be drawn from future cases. that "may" involve encryption in the cloud (This a rather new "scenario" as a lot of companies including Google, Amazon, are moving to cloud computing storage in the future).

Brief summary of the U.S vs. Fricosu (2011) and U.S vs. Doe (2012)



Briefly, Ramona Fricosu was a Colorado woman, who was accused by the F.B.I of committing Real Estate fraud [1]. The F.B.I "demanded" that Fricosu give up the encryption keys, as they had probable cause to believe their was evidence of a financial crime information being stored on her computers hard drive. The E.F.F used the defense that if Fricosu was compelled to hand over the encryption keys", it would be a violation of her fifth amendment right that I mentioned above, mainly that of "self-incrimination". Originally a judge sided with E.F.F and Fricosu, they had felt that F.B.I had failed at first to adhere to the "forgone conclusion test". Basically what that means is if the F.B.I DOES NOT know the EXACT location, where the encryption keys are stored on the hard-drive, they can't compel her to hand over the encryption keys! After, a rigorous appeals process and a legal "wiretap" that the F.B.I obtained from Fricosu, the F.B.I was able to obtain evidence, that did adhere to the "Forgone conclusion test", mainly that Fricosu "incriminated" herself, because in a phone conversation, she gave up the EXACT location of where the encryption keys were stored on the hard drive! A judge would later "reverse" the decision and Fricosu was sentenced to jail time, barring an appeals process for Real Estate fraud!

Another similar case from last year, briefly dealt with a U.S Border Patrol agent, who happened to find an encrypted hard-disk on unsuspecting motorist laptop! (I can't seem to find the case, but LexisNexis search should eventually turn it up). The case is collectively referred to as the U.S vs. Doe (2012). In this case, I believe it was the F.B.I used the same process trying to compel "Doe" to hand over the encryption keys on the computer, because they had probable cause to believe the man had pictures of "child pornography" on his laptop. This case AGAIN dealt with the "forgone conlcusion test". The only time was this time, the F.B.I had no way finding the encryption keys, along with the fact that "Doe" head pleaded the fifth! In the case, Doe was able to walk away without any charges against him and his fifth amendment constitutional rights held up in court!

Conclusion



In the future, it's VERY likely we will see more cases relating encryption not only hard drives, but also in the "cloud" (as is the case with Kim Dot Com "Mega" "strategy") [2]. In what ways will law enforcement use new "high tech" methods in order to compel suspects to hand over data that has been encrypted in the cloud, if they have probable cause to believe that the user has committed Copyright Infringement in that respective country, when most countries in the world have strict "key disclosure laws" and some, such as the U.S have STRICT Intellectual Property laws, like the Digital Millennium Copyright Act, that can be ENFORCED under the Berne Convention in "those" respective countries? Certainly, this leaves a lot "open ended" legal questions that will need to be resolved in the future. That's all for this week. If you have any comments or suggestions on, how I can improve this entry (or you are lawyer and want me to make some technical corrections, please let me know!). I look forward to hearing from you! I will be back either next week or the week after, because I am fact busy with school with a new entry for my weekly readers. In the meantime, keep asking those tough legal questions and always ask the LexisNexis for help if you are lost. Finally, please consult with a lawyer in I.P or criminal law if you need legal counsel! Have a nice weekend! Take care ;-D.


References:



1. EFF. "United States vs. Fricosu (2011)". https://www.eff.org/files/filenode/us_v_fricosu/fricosuamicus7811.pdf accessed 25 Jan 2013. 2011
2. Escapist Magazine. "Kim Dotcom Reveals New Mega Strategy". http://www.escapistmagazine.com/news/view/120213-Kim-Dotcom-Reveals-New-Mega-Strategy accessed 25 Jan 2013. 1 Oct 2012.

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