Your Encryption Key Is Protected By The Constitution?

from the can't-incriminate-yourself dept

In an interesting case up in Vermont, a federal judge has ruled that someone accused of a crime cannot be forced to reveal his or her encryption key, as it would be a violation of the Constitution's 5th Amendment, saying that an individual cannot be forced to self-incriminate. In an age where encryption is becoming increasingly popular, expect to see other cases of this nature. It seems likely that a case like this one (if not this one itself) will eventually wind up before the Supreme Court to determine whether or not someone can be forced to give up his own encryption key. Where it gets tricky is the question of whether or not the key itself incriminates the person. As the article notes, a person can be forced to give up a key to a safe that contains incriminating evidence, which many say is analogous to this situation. In the meantime, though, we've already seen cases where people are presumed guilty just because their computers have encryption software installed -- so, it may not matter whether or not the key is provided when the presence of PGP alone is viewed as incriminating.

Filed Under: constitution, encryption, encryption key, fifth amendment, pgp


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  1. identicon
    Matt, 17 Dec 2007 @ 8:59am

    Re: 5th ammendment

    I know the comment about the password being an admission of some crime was at least partially facetious, but it's an important point. While the key to a safe can only, forever, be some sort of physical key-type of object, a passphrase can be literally anything, from "sodighwreg456725$##" to "I am a filthy paedophile and all the kiddy porn on this laptop belongs to me" (as an example). The former could be given up freely, the latter, not so much, and there's no way for the state to know which it is until it's given up. If it is the latter (or something similar), than I can't really see how you couldn't give 5th amendment protection (despite the fact that it's almost certainly a clever way to ensure just that).

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