Chapter 17: Thesis Defended

I knew when I walked into the room, it was going to be tough. Lars and Jordan sat on one side of the room with Professor Martin and Oren Rawlings on the other side. There was an empty chair on either side so I could imagine Dag in whichever position I wanted.

Defense

My thesis has been defended and now I await my degree. Lars called in the evening to say the committee had approved my thesis and recommended graduation with honors. What a long haul. It took them long enough. I presented at ten in the morning and we argued through lunch. If the audience had been allowed to participate instead of just the committee, I don’t think I’d be out of there yet. Cinnamon asked if she could watch, since she’s never seen this side of the computer forensics business. She kind of thinks being a detective is all about having a clever disguise and impenetrable secret identity. I wasn’t expecting Lars to invite the entire Criminal Justice Department to observe. There were twenty people in the little conference room we used for the presentation.

In 1998, computer hacker Kevin Mitnick was doing time for having breached computer security and allegedly having stolen billions of dollars worth of software and intellectual property. He was kept in prison without trial longer than any civilian before the War in Afghanistan, while appellate courts threw out nearly every motion made to set bail and gain release of Mitnick, and while Mitnick himself was becoming an urban legend. The United States District Court did establish that the government could not hack into Mitnick’s encrypted files to gain evidence against him, nor was the defense required to provide the government files from Mitnick’s encrypted drives. While prosecution has an affirmative duty to reveal evidence favorable to the defense, the defendant has no reciprocal duty. Under Fifth Amendment protection, prosecution cannot require a defendant to explain the evidence in the prosecution’s possession nor force the defendant to give up the encryption codes. So, the court noted that encrypted evidence would not be part of the prosecution’s case since it had no idea of what was on the encrypted devices. The court concluded that “as long as he has the keys in his pocket, there’s nothing this court is going to do about it.” The court denied access to the encrypted material unless Mitnick voluntarily gave up the encryption key.

In another case, just a few years later, Ari David Levie appealed his conviction in Minnesota for various child pornography and child sex abuse charges. In his appeal, he said the court improperly allowed evidence from his computer, including his browser history and the presence of encryption software to be admitted in the trial. The Minnesota Appeals Court ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent, and therefore the evidence was admissible.

My thesis is that encryption software and encrypted files are not evidence of wrongdoing or of criminal intent and, on the contrary, encryption of computer files is the only way to prevent such heinous crimes as identity theft, theft of intellectual property, or corporate espionage. Therefore, evidence pertaining to the mere existence of encryption software on a computer—which has increasingly been included in computer software and operating systems—implies neither criminal intent nor malfeasance and as such it would be a breach of civil liberties to attempt to break an encryption code or to assume wrongdoing because either encryption software or encrypted files happen to exist on a computer.

“Ms. Riley,” came my first question from Mr. Rawlings of Microsoft, “in your opinion and based on your research, do you believe that the encryption routines embedded in operating systems or computer software could be used as evidence against, say yourself, if your computer was confiscated by the police?” Whoa! Let’s get personal right away.

“The laws have not been fully tested,” I said. “The courts sidestepped the issue in the Levie case by saying the conviction was based on the firsthand testimony of the child involved and was merely corroborated by browser history and the presence of encryption software. I believe the ruling might have been different had it been anything other than a child pornography charge. In general, our society considers that a far more heinous crime and juries are far more willing to convict for the sake of the victim than, say, a crime that was merely financial in nature. I consider it unlikely that my protection of my private journal with a password, a provision made in Microsoft Word, as admissible that I was doing something fraudulent. In fact, I simply don’t want my personal musings to become public should I die or my computer be stolen by a pernicious individual. I’d die of embarrassment—again.” That succeeded in lightening thing up a bit, but Jordan went on the attack.