On U.S. v. Fricosu and Word Magic

To begin with, Judge Blackburn did not order Fricosu to decrypt her hard drive.

Why not? The obvious answer: because the government didn’t ask him to.

What did the government ask him to do? It asked him to order Ms. Fricosu “to produce the unencrypted contents of the computer.”

(In fact, the government asked for a writ under the All Writs Act, 28 USC 1651, requiring Ms. Fricosu to produce the unencrypted contents. Judge Blackburn cited two cases in support of his authority to enter such an order: United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977), and In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) [actually 2011 WL 3423370]. Use of the All Writs Act to compel a defendant to cooperate with the government against himself appears to be novel.)

So Judge Blackburn ordered Fricosu to provide (in law, when someone is ordered to produce something, produce doesn’t mean create, but rather provide) the government with an unencrypted copy of the hard drive.

Here’s the problem: an unencrypted copy of the hard drive does not exist. Fricosu can’t produce the unencrypted drive because she doesn’t have an unencrypted drive.

“Aw c’mon now Mark,” I hear you say. “By ordering her to produce an unencrypted drive he’s ordering her—just like all the pundits say—to decrypt it.”

No. A writ is legal word-magic. Word-magic is powerful, but it has technical limits. The person on whom word-magic is cast doesn’t have to do what the sorcerer wants him to do; he has to do what the judge orders him to do. To be enforceable, an order has to be specific. If you order me to produce something that doesn’t exist, my failure to produce it can’t be punished.

Legal word-magic is like a wish to a djinn: if there are two ways to interpret it, you’re going to get the least helpful one. If you want your word-magic to be effective, you have to remove all wiggle room. If you want someone to decrypt a hard drive, order her to decrypt it.

So Fricosu, ordered to produce the unencrypted contents of the computer, could very well respond, “Can’t do it, Judge. Don’t have it.” Then Judge Blackburn, irritated (nobody likes dealing with a djinn), says, “Okay. Produce it by decrypting it in the government’s presence. Happy?”

In Boucher, the grand jury first subpoenaed a piece of paper containing the password (which presumably didn’t exist), and then changed its mind and asked that Boucher be ordered to “produce the contents of his encrypted hard drive in an unencrypted format by decrypting the drive before the grand jury.” (Mr. Boucher elected not to pursue an appeal.)

The fact that in Fricosu the government and Judge Blackburn elected not to couch the writ in terms of decrypting the hard drive is interesting and, I suspect, important. A question of framing? By phrasing the requested relief as a writ under the All Writs Act to produce the decrypted drive, rather than to decrypt the drive, does the government hope to make the fact that the decrypted drive does not currently exist disappear? To make it appear that the evidence already exists, to bring it more in line with the All Writs Act cases (though the problem of a writ directed to a defendant rather than a third party remains)? If you put it this way: assuming that the defendant has something, and that producing it will not incriminate him, can he be compelled to produce it?, the answer might be different than if you put it this way: can the defendant be compelled to create or recreate something that doesn’t exist and then produce it if producing it will not incriminate him?

What can the government can force you to create, and then use against you? Handwriting exemplar? Sure. Drawing of the crime scene? Most likely not. A bunch of computer files that no longer exist but that could easily be recreated by the defendant? A nice question, and one that I hope we’ll see addressed head-on in the near future.

11 responses to “On U.S. v. Fricosu and Word Magic”

  1. I see this is as being compelled to provide the combination to a safe that is believed to hold incriminating evidence. Or being forced to unearth documents I have buried in my backyard that is believed to be incriminating. This is clearly an attempt to make one incriminate themselves. And since there is no way for the government to prove the evidence in my safe, or the documents buried in my yard, are evidence against me of wrongdoing, this is a fishing expedition. And I would refuse to bait their hook for them.

  2. “an unencrypted copy of the hard drive does not exist”

    That’s what I thought too, but I figured I was just thinking too much like a legally-naive computer geek. It hadn’t occurred to me that, as you suggest, the judged chose his words carefully to try to frame the issue.

    Part of the problem us computer science types see with this issue is that at the most basic level, all computer software is doing math; so if the judge does order Fricosu to decrypt the disk, in a sense he’d be ordering her to do a lot of math, which seems kind of odd.

    On another level, this is a question of data format. If she had been ordered to provide financial data, and had done so using a 25-year-old spreadsheet format developed by a long-defunct competitor to VisiCalc and then converted to Radix-64 for encoding onto a 50’s era 7-track magtape — because that’s all she had — could he order her to provide a version in Excel 2010 on a flash drive?

    Perhaps legal experts can find a clear and reasonable way past these geeky issues, but I think we’re in for a lot of confusion before this is over.

    • Legal experts’ “clear and reasonable” way past these geeky issues will be to pretend that they don’t exist—that the unencrypted hard drive exists, and just needs to be unlocked.

  3. You attribute a greal deal of credit to the Judge’s (and hene the government’s) focus on the technial detail of the order. My thought was that they used the Boucher construction (the end result rather than the key/password) to get past the state of mind aspect, since they didn’t actually care what the password/key was, but only the content of the computer.

    The problem is more of the precedent/analogy conversion we see whenever technology supplants physical evidence. Much like the argument of whether it’s more like the key to the lock of the file cabinet versus the combination to the lock of the file cabinet, it’s a battleground of analogies, all of which fail to adequately address the issue you focus on here, or whether it’s creation of content that doesn’t exist, even though it had in the past), or translation of content that exists and the government already possesses, but in an unreadable format.

    Until the courts confront the real nature of their orders, and the real nature of tech, we’ll just go in circles arguing which analogy we like better and parse words and details until we’ve completely lost sight of the underlying purpose, the proper line between our constitutional rights and compelled disclosure.

  4. This is a little bit more than handing something over. The act of computer production smacks of forced labour – even involuntary servitude. Can it truly be considered to be a part of a person’s normal civic obligations – just because a judge has ordered it?

  5. .What would Tron do? Would he need a Search warrant before going “inside”?

    Seriously, damdest thing happened to my wife’s computer while in my care. While at Old Town Spring I purchased one of those magnetic “Mark Thiessen” type “Man Bracelets. When I was done typing and closing the laptop monitor lid I inadvertently took off my rings, watch, and Theiessen man bracelet. No sooner had I taken it off and the thing jumped from my hand and latched onto the steel lid of the computer like a scene from Alien or magnetic leg mine in Terminator Salvation. The next day, – yep – you guessed it – nada. Fried computer guts.

    I hope this “target” is more careful than I was. Phew! Angry Federal Judge or angry Wife – neither is any fun to deal with, but, only one can put you in jail. but then again, awe I’ll stop there!

  6. This puts a whole new twist to what narcotics cops do daily:
    “Show us the drugs, open the safe, or we’re gonna tear your house to sheds, arrest your family and call Child Protective Services to take your kids”
    It’s just 2012 style…….

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