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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 24, 2005

Mere Presence of Encryption on PC Relevant to Criminal Acts

Posted by Ernest Miller

C|Net News reports that the Minnesota State Court of Appeals has upheld a ruling in which the presence of an encryption program on a computer was relevant to a criminal child sex abuse case (Minnesota Court Takes Dim View of Encryption).

The case, Minnesota v. Levie, involves the uncle of a nine-year-old girl who sought to have her pose nude for his digital camera. The Court upheld his conviction on two counts of solicitation of a child to engage in sexual conduct.

In his appeal, Levie challenged, among other things, the introduction of evidence that he had a file encryption program on his computer.

He [retired police officer Brooke Schaub] also testified that he found an encryption program, PGP, on appellant’s computer; PGP “can basically encrypt any file;” and, “other than the National Security Agency,” he was not aware of anyone who could break such an encryption. But Schaub also admitted that the PGP program may be included on every Macintosh computer that comes out today,...
The judge found this relevant:
After closing arguments and an adjournment, the court explained its findings orally, noting that: ... the “evidence tends to show that an encrypting capability was employed by the Defendant;”
Which led to Levie's argument on appeal:
Appellant first argues that he is entitled to a new trial because the district court erred in admitting irrelevant evidence of his internet usage and the existence of an encryption program on his computer. Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. And rulings on relevancy will only be reversed when that discretion has been clearly abused. “The party claiming error has the burden of showing both the error and the prejudice.”

Appellant argues that his “internet use had nothing to do with the issues in this case;” “there was no evidence that there was anything encrypted on the computer;” and that he “was prejudiced because the court specifically used this evidence in its findings of fact and in reaching its verdict.” We are not persuaded by appellant’s arguments. The record shows that appellant took a large number of pictures of S.M. with a digital camera, and that he would upload those pictures onto his computer soon after taking them. 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. [citations omitted]

I can see that this evidence wasn't clearly prejudicial, and thus not meriting throwing out the conviction, but I really don't see why it was relevant. What, exactly, is the presence of an encryption program supposed to be relevant for? There was no evidence, apparently, that Levie used the encryption for anything related to the crime.

As Techdirt notes sarcastically, the rules seems to be "if you had nothing to hide, why would you encrypt it?" (Because Only Criminals Use Encryption).

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Cryptography | Security


1. tom scott on May 25, 2005 10:39 AM writes...

There was no evidence, apparently, that Levie used the encryption for anything related to the crime.
Was there no evidence or was the evidence merely not reported? I guess that's why that word "apparently" is in that sentence.

Permalink to Comment

2. Ernest Miller on May 25, 2005 11:10 AM writes...

Well, if there were such evidence and it had been entered in the lower court proceeding, it would have been a slam dunk to mention it in the decision to show relevance.

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