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Minnesota court takes dim view of encryption

Using PGP to encrypt files can be viewed as evidence of criminal intent, an appeals court rules.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Declan McCullagh
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A Minnesota appeals court has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent.

Ari David Levie, who was convicted of taking illegal photographs of a nude 9-year-old girl, argued on appeal that the PGP encryption utility on his computer was irrelevant and should not have been admitted as evidence during his trial. PGP stands for Pretty Good Privacy and is sold by PGP Inc. of Palo Alto, Calif.

But the Minnesota appeals court ruled 3-0 that the trial judge was correct to let that information be used when handing down a guilty verdict.

"We find that evidence of appellant's Internet use and the existence of an encryption program on his computer was at least somewhat relevant to the state's case against him," Judge R.A. Randall wrote in an opinion dated May 3.

Randall favorably cited testimony given by retired police officer Brooke Schaub, who prepared a computer forensics report--called an EnCase Report--for the prosecution. Schaub testified that PGP "can basically encrypt any file" and "other than the National Security Agency," nobody could break it.

The court didn't say that police had unearthed any encrypted files or how it would view the use of standard software like OS X's FileVault. Rather, Levie's conviction was based on the in-person testimony of the girl who said she was paid to pose nude, coupled with the history of searches for "Lolitas" in Levie's Web browser.

Judge Thomas Bibus had convicted Levie of two counts of attempted use of a minor in a sexual performance and two counts of solicitation of a child to engage in sexual conduct. The appeals court reversed the two convictions for attempted use of a minor, upheld the two solicitation convictions, and sent the case back to Bibus for a new sentence.