papers after his capture by federal authorities. Today, Mitnick is in jail awaiting trial on hacking charges, but he's still creating static. A federal judge has ruled that Mitnick is not entitled to see en- crypted computer files seized after his arrest, unless he unscrambles them first. The ruling by Los Ange- les federal judge Mariana Pfaelzer marks the first time that a court has ruled on how to handle encrypted evidence. |
crimination for Mitnick to reveal his key to decrypt the files. Randolph says that he is considering an expe- dited appeal of Pfaelzer's ruling. The Mitnick decision may mark the start of court battles over encrypt- ed electronic battles. With busi- nesses jumping aboard the encryption bandwagon, it won't be long before encrypted files will be seen in court nearly as often as a navy blue suit. The Federal Bureau of Investigation's forensics laboratory says that 7-8 per- cent of the computer evidence it re- ceives is encrypted. "As we're increas- ingly unable to decrypt the material, I |
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Encryption was once
solely the domain of math
ematicians and computer
experts. But, as electronic
commerce and communications have grown, so too
has the use of encryption,
which is the digital equivalent of sealing an envelope
shut. In the not-too-distant
future, it may be as com
mon to encrypt a file as
send a fax. Even today, it's
the best way, for example,
for a lawyer to send a draft
of a confidential document
electronically to a client. Or
for a hacker to keep secret
the tools of his trade. Mitnick has been imprisoned since his capture in 1995 on a parole violation. While in jail, he was charged with computer fraud relating to breaking into computer systems at Motorola, Inc., and other companies. The case has taken a long time to develop. There have |
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been numerous discovery disputes over Mitnick's computer files. The government's inability to unscramble Mitnick's encrypted files has added further complications. When Mitnick asked the court to order the government to turn the en- crypted files over, Pfaelzer refused. In her terse ruling from the bench, she said that possibly exculpatory evi- dence--Brady material--should not be returned to the defense until it is readable. Trial is now set for January. Both sides say they would like to see the material. Mitnick's court-ap- pointed attorney, Donald Randolph of Santa Monica's Randolph & Lev- anas, says he believes that the files contain exculpatory material. But there could be incriminating evi- dence, too. Randolph argued to the judge that under federal rules, Mit- nick is entitled to a copy to prepare his defense. He further contended that it would violate his Fifth Amendment right against self-in- |
don't know what that'll do to our prosecutions," says Edward Allen, an FBI information resources expert. For years, the FBI has been urging the Clinton administration to build a backdoor into encryption products. Using it, police agencies would be able to un- scramble a document, but only if they had a court order. The computer industry and civil libertarians have fought such proposals vigorously. A judge could conceivably order a defendant to decrypt files being held as evidence. Federal prosecutors have never made the request, according to Susan Kelley Koeppen of the Justice Department's computer crimes and intellectual property section. As Mitnick's case heads to trial, it is unlikely that his prosecutors will ask the judge to order Mitnick to unscramble the files. The final word on encryption in the courtroom has not yet been deciphered. ---MATTHEW FLEISCHER |