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July 13, 2011
Computer Privacy In The News
Two stories related to computer privacy caught my attention. One is that law enforcement agencies are increasing the amount of warrants sent to Facebook to gather data on individuals. That law enforcement agents are interested in Facebook user details is no surprise. Stories of private investigators, employers, and others gathering character evidence are not shocking. The Reuters report adds a number of new wrinkles. One is that the requests are for a user's "Neoprint" and 'Photoprint," details the report says are not available to the user. Does Facebook compile its own dossiers on individuals it doesn't share?
The second wrinkle is that the section in law enforcement manuals on how to request information from Facebook "appear" to be prepared by Facebook. Something that seems to be the law enforcement manual appears on the cryptome.org web site. The document is dated from 2008 and has a copyright notice with Facebook as the copyright holder. It does describe in some detail what it will hand over on valid request. The company declined to confirm to Reuters that it prepared any documents as, I'm assuming, it might be bad for business. Reuters says it determined 11 warrants were granted in 2011. That's not a lot in comparison to the number of Facebook users. Still, asking for search warrants for hidden Facebook content may become a comfortable practice for law enforcement over time. User beware, as they say.
The second story involves a Colorado defendant charged with fraudulant real estate transactions in federal court. The government is asking a judge to compel Ramona Fricosu to give up her password to an encrytped laptop drive or alternatively type it in while no one is looking. Either way, the government wants the unencrypted content of the laptop. There is the problem of the Fifth Amendment prohibition against self-incrimimation.
The government was successful in the Boucher case several years ago. Boucher crossed the border from Canada and his laptop was examined by U.S. border agents. Boucher typed in his password at that time and the agents viewed what amounted to child pornography. Later forensic investigation showed that technicians could not get back into the drive without a password. Boucher was ultimately compelled to give it up because the agents had already seen the content and knew where it was. The judge in the case justified it because "providing access to the unencrypted Z drive 'adds little or nothing to the sum total of the Government's information' about the existence and location of files that may contain incriminating information. Fisher, 425 U.S. at 411."
Fricosu's case is a little different. The government isn't sure what's on the hard drive. There may be evidence relating to the alleged real estate fraud, or there may be personal information, or possibly evidence of other, unknown crimes. Who knows, maybe she downloaded Metallica files without paying for them, making Lars the drummer cry. In any event, the government wants to know what's on the drive. Both sides note the distinction made in the Supreme Court case Doe v. United States, 487 U.S. 201 (1988) where the Court said a witness may be forced to surrender a key to a strongbox containing incriminating documents but not the combination to a wall safe. The government, as a practical matter, could break open both with the proper court authority.
Encrypted digital data is a bit different. The government is not willing to admit it can break PGP encyrption, at least in these cases. The Electronic Frontier Foundation has filed an amicus brief in the case suggesting this case is more like the combination than the key. I tend to agree. It's not as if there is some security fob that can open the laptop content to scrutiny. The outcome of the case should offer a better understanding of what privacy safeguards a person can employ for his or her own digital information without the government being able to access it. There is a hearing on the issue scheduled later on this month.
An interview with the attorney representing Fricosu is on CNET. [MG]