Court: Presence of Encryption Software Shows Criminal Intent

Matt O'Conner
ST. PAUL, Minn. — A ruling by the state Court of Appeals this week said that the presence of encryption software could be interpreted as evidence of criminal intent, at least in Minnesota, even if it was not used in relation to the crime.

Some within the technology community worry that the ruling could establish a precedent that using — or even merely having — encryption programs could be admitted as criminal intent.

“What’s scary… is how easy this ruling could be applied in other cases,” Techdirt CEO Mike Masnick said. “If you’re accused of any computer crime, and you happen to use PGP (Pretty Good Privacy) for legitimate purposes, just having it can be used against you in court.”

The case involved former third grade teacher Ari David Levie, who had been convicted by a lower court on two counts of soliciting a child to engage in sexual conduct when he offered his nine-year-old niece $50 to pose naked for photographs.

During court proceedings, the prosecution presented as evidence the fact that Levie’s computer contained a PGP utility. The court in its findings said that it used this evidence in reaching its verdict.

However, a forensic investigation by police showed that there were no encrypted files on Levie’s computer.

Levie’s lawyers appealed on the basis that the use of “evidence” totally unrelated to the case prejudiced the lower court.

The Court of Appeals rejected that argument, saying that other evidence against Levie — including multiple Internet searches for “lolitas” — was so overwhelming that one relatively minor aspect of the prosecution’s case should not be used to overturn the conviction.

The appeals court further said that the trial judge was correct to consider the PGP evidence 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 said.

However, the appellate court did acknowledge that the case was flawed and sent it back to a lower court for resentencing.

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.