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
    Shun, 17 Dec 2007 @ 10:25pm

    In Soviet Union...

    Secret Key encrypts you? OK, seriously. Let's turn this around to the boogeyman hypothetical situation that we all like to pick on.

    Let's pretend that you are a political dissident in China. You have been caught sending seditious PGP-encrypted messages to people outside of the country (how do we know they are seditious? Because they are encrypted, of course.) We brutally pull you into detention and check your hard drive. Lo and behold, you have further encrypted files on your hard drive! Incredible! Treason! Now, let's just pretend that the Chinese government magically gets something like the 5th Amendment, the Supreme Court, and something approaching the rule of law.

    How would any citizen of any country react to this situation? Wouldn't we be outraged that a citizen was being oppressed for "possible crimes against the state"? Crimes that could not be proven, except by torturing the secret key out of the person? Stop me when this starts to sound familiar.

    See, PGP was not created for the express purpose of hiding the communications of people in Burma and China, exclusively. Any political dissident, anyone with an opinion contrary to the opinions held by those currently in power, and basically anyone who values his/her privacy, has the right to encrypt.

    If the government has independent proof that I or anyone else has committed a crime, let the government present that evidence. Seizing and fishing through a laptop is a cop-out. It's lazy police work. If a crime has been committed, and anyone is arrested in connection to that crime, you'd better have great evidence that connects this crime to this person. Otherwise, you have to let that person go.

    Sorry, but your person is a better criminal than you are a cop. You'll just have to catch that person when they commit their next crime. Sounds harsh? So does false imprisonment, and holding political prisoners. The U.S. criminal justice system was originally set up so that it was given that some criminals would go free. As long as no innocent person was placed in prison, this was considered an acceptable price. Now, with our "Law and Order" folks running around, the balance has shifted. Now, you're "guilty until proven innocent" and even then, you're innocent only if you can afford an expensive lawyer.

    You absolutely have the right to remain silent. There is no God or Government that can compel you to speak. If they use torture, coercion, "harsh methods" of any sort, you've just proven that the authorities have zero moral (and legal) legitimacy. Also, you can just claim that you forgot your password. Hey, the "I don't remember" excuse worked for Reagan. Turns out he, at least, was telling the truth.

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