Does Encryption Software Imply Criminal Intent

[hardheadjarhead]

This post in Technology Review got me to thinking about this issue:

http://king.trblogs.com/archives/2005/05/encryption_prog.html

Does it imply criminal intent?

Let's assume no child pornography is involved (say, for argument it is an embezzlement case) thus avoiding the emotional issue that might skew us to decide the issue without objectivity.

Should the government discover a person has downloaded encryption software, does that provide them justification for a search of that person's computer/home for illegal items? Ought the fact that they have the software be used as a fact in criminal court?



Regards,


Steve

 

[arnisador]

It's a long-standing oddity that this is considered a munition. I have mixed feelings. It is just software, but...it could be used to conceal much illegal activity. I'm really not sure where I fall on this issue.

If they can restrict cold medicines, why not this?

 

[Andrew Green]

No, encryption software is fairly common place. It doesn't conceal criminal intent, it protects files you don't want others to have access too.

Even Winzip can encrypt a file, e-mails can be encrypted, many website support encryption, it is a important piece of security.

This is a simple case of people skewing facts to fit their conclusion. The less people understand the technology the easier it is to convince them of really dumb things....

This "fact":

"other than the National Security Agency," nobody could break it.

is also not true, It might not be easy, but there are plenty of people that could likely brute force there way in with enough time or a cluster at thier disposal.

The whole thing seems stupid. Individual security isn't allowed? We should leave everything readily accessible to anyone? Then wonder why DDoS attacks are so common and why we get so much spam and malicious software showing up....

More people should be learing about computer security, not saying anyone that does has "criminal intent"....

 

[raedyn]

As the linked article said - does locking your front door show criminal intent? Does denying a police officer (without a warrant) access to search your home demonstrate criminal intent?

I might encrypt my files to prevent a snoopy roommate from reading my private conversations. Or perhaps I'm developing an product that could make a lot of money, but I don't have it patented it yet. I might encrypt my files about it to stop someone from reading my research and stealing my idea & the future earnings that could come from it. Maybe I am a doctor or counsellor, and I want to keep confidential patient information on my computer for my own ease of access but I want to be sure that it's secure and available only to me.

These would all be legitimate, legal, non-criminal reasons to own and to utilize this sort of software.

Bad ruling.

 

[hardheadjarhead]

The assumption with encryption seems to be one of wrongdoing if one possesses it. Millions own such stuff, and surely not all of these are criminals attempting to hide a crime. I can think of a number of reasons:

1. A business owner attempting to secure customer information.
2. An attorney attempting to secure confidential data concerning a client.
3. A doctor trying to secure highly personal information regarding a particular set of patients.
4. An academic or student attempting to secure research.
5. An individual attempting to hide political/personal information, data, pamphlets, videos, or pictures that--while perhaps embarrassing or socially compromising or inflammatory--is in no way illegal.

This last argument (5) is one I've used elsewhere here on MT in arguing for a right of privacy in avoiding an officer's request to search the trunk of your car. The assumption often posed is "if you're not doing anything wrong, you have nothing to hide." Not true. Further, if one is doing nothing wrong, then the officer has no need to search. The search itself might imply an assumption of guilt and an attempt to confirm it.



Regards,


Steve

 

[Bigshadow]

Simply put a computer system can be violated, either by unknowns wanting to steal your identity or personal information over the internet or by someone you may know who would pilfer around your computer and gain information that is private.

Just as people can hide illegal activity inside a locked and secure house, one can hide illegal activity inside a locked (encrypted) and secure hard drive or file(s). It boils down to privacy.

So in essence they are saying privacy shows criminal intent if you break it down to the lowest common denominator.

In history, there were revolutions fought and much blood spilled over similar principles.

 

[hardheadjarhead]

If they can restrict cold medicines, why not this?

I can't see any link between cold medicines and this. A person can damage or kill himself with a prescription drug. The safety of the individual is the issue with restricting and regulating something of that nature. Not so, this. Further, it is no intrusion into my life if the government requires me to have a prescription from a doctor for a medication.

On that note, if I have sudafed in my house for cold/flu/allergies...should the government assume I'm using it to make meth?


Regards,


Steve

 

[Rich Parsons]

While working for a previous employer where encryption was important, I encrypted my "home area" on the main frame. If you wanted to view any of the files you needed to run it through the decrypt software. I wrote the software to encrypt and decrypt myself. Well I did it to show some others, that it could be done. I did it becuase I knew how to do it. I removed it when I was asked by my manager, what I was hiding. I went and decrypted everything that moment in front of him. Everything was in order. He laughed, and just shook his head and asked why? I said because I can. I then asked him then, " How is it that you found out about this, unless someone went through my home area?" The smile went away and he then asked me into his office and told me that people had linked to my home area for some interesting prints that were used for screen savers and such. The first person then passed it on to others. When they went away, people complained to the sys admins. And then an investigation was put forward to find out about the broken software. So, I removed the software, and went on my way to doing my job.

Now an interesting thing about the class I took in the late 80's, the book had a sticker that stated it could not be taken outside of the USA.

So, my thoughts are you are not guilty, but many think you are.

 

[Ronin Moose]

Should the government discover a person has downloaded encryption software, does that provide them justification for a search of that person's computer/home for illegal items? Ought the fact that they have the software be used as a fact in criminal court?

IMHO absolutely not, and that comes from one who has spent a lifetime in law enforcement. Seperating the "government" from any other "law enforcement" for a moment, I believe we must do whatever is neccesary in terms of true National Security, and I pray that those who are entrusted do not abuse that power. As for a criminal investigation I still believe we have a responsibility to develop probable cause for any type of search or seizure - P.C. that a crime has been committed, not that someone has an ecryption software installed.

Just my 2 cents worth, but why tempt fate? Absolute power corrupts, absolutely!

-Garry

 

[arnisador]

On that note, if I have sudafed in my house for cold/flu/allergies...should the government assume I'm using it to make meth?

You and I both live in Indiana so we know that as a practical matter...they do. It drives me crazy, but if they can make that argument (legally), then encryption will continue to be a snap for them.

On another note, I have some of those non-exportable books myself.

 

[modarnis]

>>As the linked article said - does locking your front door show criminal intent? Does denying a police officer (without a warrant) access to search your home demonstrate criminal intent?>>


Absent other factors, probably not. Add in other evidence, encyption software or door locks may be relavent evidence. I would first make the distinction between searches (probable cause necessary and totality of circumstances in a general sense serving as the basis) and the concept of intent in the context of proving a criminal case (case already pending).

As for the search issue, let's use the lock example. If my neighbor's house has 7 deadbolt locks on the door, I might think they are weird, but in and of itself it means nothing. Add in some facts like frequent visitors with out of state plates who visit for less than 5 minutes and hundreds of empty packages of pseudophed left for the trash each week, along with empty 10 gallon pails of ether. Police conduct a surveillance of the exterior and confirm these findings over a period of time. For this argument's sake, the officers have specific training in patterns of behavior of illegal drugs. This would likely be sufficient for a search warrant. Psuedophed and ether are component parts of methamphetamine production, drug dealers are often concerned for their safety and use locks and surveillance equipment, and frequent short duration visitors are typical MO of street level drug sales.

As for intent, lets look at a child sex type case. This is a slightly altetred fact scenario of a case one of my colleagues recently prosecuted. Parents of an 11 year old girl get suspicious of said girl's secretive computer use and they start reading her email's. They note that she is corresponding with a person who is 25 years her senior based on his internet provider profile. Some of the emails are sexually explicit. They alert local authorities who set up a meeting with this gentleman , after they continue to correspond with him, pretending to be the aforementioned little girl.

He is arrested for several crimninal charges when he arrives at that meeting. Based on that arrest and the original fact pattern, a judge issues a search warrant for the guy's computer. The original emails are an instrumentality of the crime. On forensic exam of this computer, encryption software along with 5,000 images of child porn were found.

Does that factor into his intent. Surely it does. Combine evidence of his prediliction for child porn, software attempting to conceal it, with the correspondence with a minor child, roll of duct tape and liquid sedative type medication found in his car at the time of the meeting and a reasonable jury can glean intent from those factors viewed in their totality.

Just having encyption software or guns or locks does not mean intent, but put in appropriate evidentiary context, intent can be gleaned from the existence of those items when combined with other factors.

Intent is a concept that is difficult to view in an isolated vaccum. It is a legal concept that is highly fact dependent.