It’s STILL bullshit
The other day I posted about news via Bruce Schneier’s blog that:
An appeals court in Minnesota has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent.
For this I got metaphorically spanked by a member of the Volokh Conspiracy, Orin Kerr, who posted a piece called “The Myth of Crypto As A Crime” — and whose argument is actually best summarized by this excerpt from a mea culpa issued by Dr. Dave Jansing in response to the Volokh piece:
The Minnesota Court Of Appeals did not rule that having encryption software on one’s computer was an indication of criminal activity, but instead ruled that in the case State vs. Levie, the software, along with other supporting evidence, indicated criminal activity and therefore the appellant was not eligible for a new trial.
Yet, this line of reasoning ignores the fact that two seperate courts ruled on this particular evidentiary matter — the district court first and then the appellate court. This only hit the media after the appellate court ruling.
The district court that initially heard the case was free to allow or disallow any pieces of purported evidence — and the district court indeed did rule that the presence of encryption software was “evidence of criminal intent”. The district court did not have the burden of having to accept or reject the whole bundle of challenges to the conviction that the appellate court had.
As the appellate court ruling notes:
Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978). And rulings on relevancy will only be reversed when that discretion has been clearly abused. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).
The appellate court went on to decide:
Evidence of appellant’s computer usage and the presence of an encryption program on his computer was relevant to the state’s case. We affirm the district court’s evidentiary rulings.
So, we see here that the appellants challenges to that particular district court ruling did not rise to the level where an appellate court would overcome its institutional inertia to overrule the district court.
That’s utterly irrelevant, though, to the concerns that this set of rulings is bad for civil liberties.
Note carefully, also, that if even one of the appellants challenges to his conviction were affirmed, he would have been granted a new trial, which one may suppose the appellate court might have privately been loath to grant him.
A district court made, in my opinion, a bad decision — ruling that the presence of encryption software was evidence, even though encryption itself is not a crime and no encrypted illegal data was found. The appellate court decided that it had little choice but to uphold the ruling of the district court. The argument that this particular evidentiary matter was part of a larger, unified, holistic bundle is true only of the appellate court ruling, not the district court ruling.
So, yes, a court did rule that the presence of encryption software may be viewed as evidence of criminal intent. There’s no mythology there, Mr. Kerr.
And, yes, I’ll still say the ruling that the presence of encryption software may be viewed as evidence of criminal intent is this: bullshit.
If I used a bit of hyperbole in merely titling my post “When privacy is a crime”, I don’t feel that’s particularly out of place — given that any bad evidentiary ruling sets a bad precedent in terms of civil liberties and that these are dark days for civil liberties, which are rapidly getting darker.
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