technophobia?

May 27, 2005 5:47 PM

Technophobia? or ignorance? or mendacity? A Minnesota appeals court has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent. The specific crime here aside, why is encryption - and by extension privacy - viewed as something seedy?
posted by Smedleyman (10 comments total)

If you don't have something to hide...

/mccarthyism
posted by dreamsign at 5:55 PM on May 27, 2005

Because God forbid domestic violence councilors communicate with PGP and not fall under suspicion.
posted by Smedleyman at 5:57 PM on May 27, 2005

Not exactly. The encryption software was evidence that the defendant was a skilled computer user, not of criminal intent. The allegation was not that "you had PGP, therefore you are hiding something", but rather "if you're smart enough to use PGP and other software beyond the grasp of an AOL user you're smart enough to know how to wipe a harddrive."

"In sum, the court did not hold that encryption is a signal of criminal activity. All it did was say that in one case, where a crucial witness testified about the presence of a computer file on a computer, that the presence of encryption software on the computer in early 2003 was "at least somewhat relevant" to the question of whether the defendant was a skilled computer user who had intentionally removed any traces of that file from the hard drive."(source)

I know. these pesky facts really get in the way sometimes.
posted by thedevildancedlightly at 5:58 PM on May 27, 2005

Since when being "smart" enough to have something on the PC means you're actually able to make any use of it ?

People have Excel installed all the time..doesn't mean they can make any decent use of it.
posted by elpapacito at 6:01 PM on May 27, 2005

People have Excel installed all the time..doesn't mean they can make any decent use of it.

I think it's less likely that somebody just accidentally had PGP laying around. And that's what we have a jury for. If the jury believes your argument then they're free to ignore the PGP evidence. Or to give it as little weight as they want. This ruling just allows the evidence to go before the jury.

Two major distortions in the way the story is framed:

1 - All the court did was rule that this is evidence that can be put before a jury. A jury can completely ignore it if they feel like.

2 - The appeals court did not rule "that the presence of encryption software on a computer may be viewed as evidence of criminal intent". They ruled that it was not an "abuse of discretion" for the district court to decide that it was relevant. Direct from the opinion, "rulings on relevancy will only be reversed when that discretion has been clearly abused".
posted by thedevildancedlightly at 6:04 PM on May 27, 2005

I could teach my mother how to use PGP in a day or two. She chats on IRC all the time. If I asked her to delete everything from a hard drive, she'd drag all the folders to the recycle bin.

Having one of the most popular encryption programs around on your computer is only relevant to the fact that this guy doesn't trust everyone on the entire World Wide Web. Any unencrypted transmission should be considered wide open to anyone.

Encrypting messages to someone can be likened to talking to them in a locked room. Maybe you just want privacy without the chance someone will bust in.

Guarding one's privacy within reasonable bounds should not even be considered by the courts as behavior out of the ordinary.
posted by Saydur at 10:14 PM on May 27, 2005

thedevildancedlightly: Well, from the context of the case, even the presence of Excel on the computer might be considered relevant, if the case involved modifications to a spreadsheet in order to cover up fraud.

Saydur: Guarding one's privacy within reasonable bounds should not even be considered by the courts as behavior out of the ordinary.

There are a lot of things that are perfectly ordinary in one context, but may be relevant to a criminal investigation in another context. Thousands of people use Mozilla, but if the case involved tracing email as evidence of illegal activity to a specific computer, the presence or absence of Mozilla on that computer would be relevant. Most people have cars, but if the case involved illegal transportation of people or things, access to a car is relevant.
posted by KirkJobSluder at 10:12 AM on May 28, 2005

I know. these pesky facts really get in the way sometimes.
Yeah. So is reading. So hard. Long sentences. Or. Other. Posts. Which point to. A. Broader idea. Especially. The qualifier: The specific crime here aside, why is encryption - and by extension privacy - viewed as something seedy?
I know. the broad topic really gets in the way of posting your own thoughts as opposed to myopically parroting what another blog has to say on a specific issue.

But since you bring up the specific case this appears to be a shallow interpretation of computer skill (as elpapacito & Saydur & KirkJobSluder pointed out).
Many many many people use PGP - therefore they have it 'laying around.' It does seem that there is, among some elements of the government (the FBI's use of Carnivore, the NSA's use of Echelon, the Total Information Awareness thing which "no longer exists") that have a real problem with citizens maintaining their right to privacy.
It is articles like the above - where it's associated with child perverts that PGP is often brought up in the first place.
So as cautious as the court may have been - it does seem to still classify using PGP as a somewhat illegitimate act as opposed to using other kinds of daily used software.

Does The Volokh Conspiracy have a cut and paste response ready for that, or am I in danger of making you think?
posted by Smedleyman at 12:36 PM on May 28, 2005

Smedleyman: Yeah. So is reading. So hard. Long sentences. Or. Other. Posts. Which point to. A. Broader idea. Especially.

Ahem. The use of William Shatner text has rarely been that funny, and renders this collection of words difficult to interpret.

The other problem is that it's rather difficult to get at "a broader idea" if you are expecting us to start from a shakey position based on a misinterpretation of a court case.

So as cautious as the court may have been - it does seem to still classify using PGP as a somewhat illegitimate act as opposed to using other kinds of daily used software.

I don't get that from this particular case. The existence of PGP was necessary for explaining if it was possible to destroy evidence of illegal activity. This does not mean that there are not legitimate uses of PGP, and there are many other ways that one can destroy evidence.

The thing is, I'm a privacy advocate. I use PGP to protect my own research data and I've been trying to convince my colleagues to do the same. I also think that every office should have a paper shredder. However, I don't think that privacy advocates do anybody any favors by pretending that these items cannot be used to conceal or destroy evidence of illegal and or illegitimate activity.

The bottom line here is that I think it is entirely appropriate to consider evidence that PGP may have been used as part of the commission or cover-up of an illegal act if it collaborates other evidence.
posted by KirkJobSluder at 3:19 PM on May 28, 2005

I think it is entirely appropriate to consider evidence that PGP may have been used as part of the commission or cover-up of an illegal act if it collaborates other evidence.
Unquestionably.
My post had been intended as more of a broadside on what appears to be a trend towards control of technology and elimination of privacy. Looks like I failed. It appears to have been done much better here and here.
posted by Smedleyman at 3:52 PM on May 28, 2005