Presence of encryption software relevant evidence in criminal conviction

Anyone who tracks court decisions related to the Internet knows that criminal cases involving improper conduct with a minor are quite common, and generally have little or no legal significance. A recent decision of the Court of Appeals of Minnesota in the case of State v. Levie, however, is worth noting in that the decision affirmed a controversial evidentiary ruling. The trial court judge had allowed into evidence the mere fact that the defendant had the encryption software PGP installed on his computer. The judge had determined that the presence of the software was relevant evidence to show that the defendant had engaged in improper conduct with a minor.

The decision is puzzling for a couple of different reasons. The forensic report prepared by the police revealed that nothing on the defendant’s computer had been encrypted. Furthermore, the police officer who prepared the forensic report admitted that PGP “may be included on every Macintosh that comes out today.” Given the evidence of widespread use of PGP and the lack of any evidence to show the defendant had used the encryption software in connection with any crime, one is left to wonder why the court would find it, as it stated, “at least somewhat relevant.”

Apparently, the court believed that the mere ability to conceal wrongdoing showed an actual intent to commit a crime. But such a conclusion is troubling. How is the mere presence of PGP on the defendant’s computer any different than him having a lock on his front door? Would the court have drawn the same conclusion regarding relevancy if the defendant was on trial for something less heinous, say, securities fraud?

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State v. Levie, 2005 Minn. App. LEXIS 476 (May 3, 2005).