Computer Encryption and Fifth Amendment Considerations - New Case Law Cometh

Most prudent business people and citizens have passwords for their personal tech devices to keep out prying eyes, hackers, cyber thieves, and protect against unauthorized use, especially if we use our computers or laptops a lot for online trading, banking, shopping, or what not. Now then, what if the police all of a sudden want to have a look see at the information if they suspect a crime "may have been" committed? Ah, good question, and perhaps we may soon know what the courts have to say about all this.

There was a very interesting article recently posted to the SlashDot website titled; "DOJ: We Can Force You to Decrypt That Laptop," July 11, 2011 by Smazenpus via Betterunixthanunix re-post

"A mortgage-fraud case may have widespread implications for criminals who use cryptography to hide evidence. The DOJ demands the defendant to decrypt her hard drive, claiming that if they cannot force such decryptions, law enforcement will be unable to gather important evidence. The defendant's lawyer and the Electronic Frontier Foundation have made the claim that forcing such a decryption would be a violation of the defendant's Fifth Amendment Right not to self-incriminate."

Whoops, that argument is actually valid isn't it? The defendant could maintain that since she couldn't remember everything in her brain, she put it on the computer. Likewise if she kept it all in her brain could authorities make her submit to a mind-reading device too? This is one case which will set case law and precedence, and there is also compelling case law to demand that she turn over the records, but if she says she forgot the encryption, then the authorities cannot have her undergo psycho-hypnosis because, there is case law for that too.

What is so interesting about all this is that, one would think that the person in question would have to turn over those records, but if it was on their personal laptop, and it is encrypted, apparently, common sense and the constitution have differences of opinion it seems. Usually when we thinking of encryption - we think about protecting information from hackers, spyware, viruses, and cyber thieves, not forensic computer detectives - but this does show how our information age is changing things.

If the individual is mandated by the court to hand over the information, encryption code or password, then this will have far reaching future ramifications in the future when people communicate via though-swapping, or have an add-on memory chip implanted into their brain. Are police in the future going to be allowed to tap into your brain to solve a crime that you committed, may have had a part in even if it was by happenstance - wrong place, wrong time?

If so, it kind of throws the whole Fifth Amendment out the window. Of course, we've been known to shred the Constitution a lot lately others might argue. Indeed another good point for yet another future discussion I'd say. Please consider all this and think on it.


Post a Comment