Let’s assume that you have an un-pickable lock on an impenetrable freezer in your basement, and assume further that freezer is full of body parts from your victims (these are assumptions – right?). The Feds think they know what's in there, but they can’t get in unless you unlock it. Can they legally compel you to open it, or can you avoid being so compelled by invoking your 5^th Amendment right to not incriminate yourself?

The equivalent of this scenario is playing out in child pornography cases around the country, where the alleged pornographers have used widely available public encryption products (which are very secure), to lock up the damning content on their computers. Without the magic words (or encryption key), law enforcement will, as a practical matter, never know what is on that drive. Law enforcement argues that where the intent is purely to hide evidence of a crime, there needs to be some way for the courts to allow law enforcement to access the evidence.  They are starting to ask the courts to compel the bad guys to cough up the passwords. 

Interestingly, in the case that is currently getting all of the attention on this, US v. Boucher, federal Magistrate Judge Jerome J. Niedermeier has addressed the “opening of the safe” analogy, concluding that if the safe requires a physical key, a suspect can be compelled to turn it over, but if it is a combination that exists in the persons head, disclosing that is tantamount to a “testimonial act” implicating the 5^th Amendment. Therefore, he ruled that requiring the suspect to enter his password would violate his right against self-incrimination. (So what if the combination is written down – is that writing the equivalent to a physical key? And even if it is the same as a physical key, isn’t the knowledge of the location of the writing in that person's head - the disclosure of which would involve a “testimonial act”, and on and on). The government has appealed, and the case is currently being investigated by a grand jury.

The case is unique to digital information, because the analogy that there is just no other way to get the evidence does not really hold up in the physical world. There is always some way to get into the safe. However, using widely available open source encryption software, such as PGP, it is virtually impossible to unencrypt files without the password. The only thing to do is to use automated guessing software, that systematically and repeatedly guesses at the password - a process that could take many years, even with a lot of computing power. The Feds are scared, because an adverse ruling here could create a safe harbor for information that would be essentially unreachable, potentially benefiting drug dealers, terrorists, and the child pornography industry. Civil Liberty groups such as the EFF say unbreakable encryption “is one of the few ways people can protect what they write, read and watch online,” and support the application of 5^th Amendment rights in cases such as these.  This will be interesting to follow.  It is definitely one where the new technology is creating some interesting challenges for the application of existing laws.

The Washington Post article on this topic is here.

Related New York Times article is here.

Photo complements of Colin Ashe under creative commons

The US District Court in Utah has ruled that "Novell is the owner of the UNIX and UnixWare copyrights" that are the subject of the dispute between Novell and SCO.  The opinion will undoubtedly impact SCO's suit against IBM.  The opinion is here.  The Court concluded:

"Therefore, Novell is entitled to a declaration of rights under its Fourth Claim for Relief that it was and is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent, and SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent. Accordingly, Novell's motion for partial summary judgment on its Fourth Claim for Relief for declaratory judgment is granted, and SCO's cross-motion for summary judgment on Novell's Fourth Claim for Relief is denied."

SCO responded in a statement that it "is obviously disappointed with the ruling", but that it is only a flesh wound, and that even though its arms and legs had been chopped off,  it could still butt IBM and Novell with its head.

This week, the Free Software Foundation issued its latest draft of the GNU-3 open source license.    The prior draft, released in January of 2006 was widely criticized, including major objections by Linux founder Linus Torvalds over digital rights management ("DRM").  The second version attempted to soften the license's effect on DRM but continued to require developers to provide encryption or authorization keys to those wanting use modified versions of the code. The new version appears to have soothed some of these concerns, and has also softened contentious language addressing patented software that relates to open source distributions.  The new version does

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The following, in no particular order, are our top ten favorite TechKnowledgy stories of 2006:

1.  Posner Appears Live as Avatar on Second Life.  If the words in that headline are gobbledygook to you, you better get with it!  Second Life is a popular online virtual world where users interact with each other through "avatars", which are basically animated cartoons of themselves.  Judge Richard Posner appeared live on Second Life on December 7th, and was interviewed on a variety of topics for two hours.   The illustrated transcript can be found here.  The idea that one of the most influential legal minds of our time is willing to embrace this emerging technology is just, well, cool. . ..

2.  Supreme Court Alit in Patent Cases.  While the world focused on the drama of the appointment of Justice Alito, IP lawyers had some drama of their own, with a fully loaded patent docket.  Decisions included

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The open source software (OSS) movement has been getting a lot of press lately as a result of the lawsuit filed by the SCO Group against IBM. Ever since the inception of the OSS movement, there has been speculation about the enforceability of OSS licenses, and, at some level, a recognition of the risks inherent in the use of OSS. All of which begs the question, what the heck is OSS. In this article, I will attempt to scratch the surface of the open source movement, the SCO v. IBM case, and provide some basic practice pointers for clients using OSS.

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