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Judge Orders Yahoo to Explain How It Recovered ‘Deleted’ Emails in Drugs Case

Motherboard:

After receiving requests from UK police and the FBI in September 2009 and April 2010, Yahoo created several “snapshots” of the email account, preserving its contents at the time—and revealing the messages. But the defense alleges there should have been nothing for law enforcement to find.

Yahoo’s explanation is that the recovered emails were copies created by the email service’s “auto-save” feature, which saves data in case of a loss of connectivity, for example. The company has filed several declarations from a number of its staff, but the defense said some of those contradicted each other, and it wants more information.

The question of when, and for whom, data has been deleted or made inaccessible is often based on power and knowledge. And end-users tend to lack both.

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You should get out of town”, the man said.

And so began the journey that resulted in my path intersecting with Matthew Duncan’s path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll.

I suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.

And thus I came to meet Mr. Duncan.

At heart, Mr. Duncan’s case was unremarkable. A minor alleged Highway Traffic Act offence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer. Nothing unusual in all that. The bread and butter of provincial court.

Of course, I hadn’t counted on the freemen on the land.

Seriously: this is an absolutely hilarious provincial court decision. Worth skimming (at least!) for the laughs.

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How to Interpret the 5th Amendment?

Declan McCullagh has an article on an important case in the US, where a federal judge has demanded a defendant decrypt a PGP-encrypted drive for the authorities. Case law in the area of decryption is unsettled, as McCullagh notes:

The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled “Compelled Production of Plaintext and Keys.”)

Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can’t be forced to give “compelled testimonial communications” and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant’s minds, the argument goes, so why shouldn’t a passphrase be shielded as well?

Eventually the case law around encryption has to be addressed by SCOTUS. There are too many differing positions at the moment; clarity is needed both for users of encryption in the US, and for counsel seeking to prosecute and defence clients.