Thursday, January 26, 2012

Does the 5th Amendment Cover Computer Encryption?

This will be interesting to watch: A judge in Colorado has issued a court order for a defendant to decrypt her laptop hard drive so police can search for evidence which would likely be used against her. The tech website CNET.com has this bit:

Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?

I have a feeling this fight is going to last a while in the courts. In fact I wouldn't be surprised if it makes it to the US Supreme Court.

2 comments:

  1. I think it will last a while as well. Since it is a password she at least has some reasonable right to the expectation of privacy as well. ON the other hand when she chose to break the law she also knew that her life and all aspects of it could be searched during an investigation. This one should prove to be a very interesting case to follow.

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  2. Kristy, Thanks for the comment. I don't think we've seen the end of this case. I know if might not be a popular position among law enforcement, but I tend to lean that if someone encrypts their data, they are expecting that it be private.

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