Legal Battles Continue Over ISP Spying, Digital Self-Incrimination

The National Sheriffs' Association has announced it supports mandatory logging provisions incorporated into a proposed federal law that would require ISPs to store all customer data for 18 months. The bill (HR 1981) is intended to amend title 18 of the USC and is known as the "Protecting Children From Internet Pornagraphers Act of 2011,"

At a Congressional hearing today, Michael Brown, a sheriff in Bedford County, VA and board member of the NSA stated: ""The limited data retention time and lack of uniformity among retention from company to company significantly hinders law enforcement's ability to identify predators when they come across child pornography." Wireless providers have managed to gain exempted status from this provision in the current draft version of the bill, but the DOJ, the bill's sponsors, and wired ISPs all strongly oppose allowing such an exemption to reach the floor.

Won't somebody please use a little common sense?

Despite the bill's title, the online monitoring provisions contained therein have absolutely no ties to child pornography. The text states: "A provider of an electronic communication service or remote computing service shall retain for a period of at least 18 months the temporarily assigned network addresses the service assigns to each account, unless that address is transmitted by radio communication." That's it.

Meanwhile, in a separate legal case, the Department of Justice has asked a federal judge to order Ramona Fricosu to provide the decryption key to a laptop seized during a raid on her home. Fricosu is not a sympathetic defendant--she's accused of fraudulent real estate transactions--but the case raises the issue of what constitutes self-incrimination in the digital age.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

The government has countered with the following: "Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible."

The EFF has a point insomuch as the Fifth Amendment protects against more than verbal self-incrimination, but the DOJ may have the better argument. The search warrant is a legal construct that provides law enforcement officials at every level with the right to examine an individual's property without compromising the Fourth Amendment's guarantee against unreasonable search and seizure.

Protection from self-incrimination has never allowed a defendant to block the introduction of legally obtained evidence, only to avoid being forced to answer questions that might taint a jury's perception of the individual's particular guilt. A company CEO, for example, can't block the admission of an email in which he signs off on a decision. He can refuse to answer questions regarding what he knew about the particular implementation of the decision he signed off on.

Either way, no court has ever ruled on how digital encryption should be considered with regard to the Fifth Amendment. Fricosu's case could set important precedent for handling such matters in the future.