Wednesday, July 13, 2011

Right to Remain Encrypted

A recent case in the United States is said to be set on being a precedent in cases involving encryption and the right against self-incrimination. In this case, a laptop was found during a police raid in the home of a woman accused of having committed mortgage scams. Allegedly, information in the laptop would further prove her involvement in the crime. The problem is that the files needed for evidence are encrypted (or password-protected).

The question now is: can the court force the defendant to unlock the files stored in her laptop?

The defense says that forcing the accused to decrypt her files would violate the 5th amendment (self-incrimination clause). Decrypting her files is testimonial in nature, since she would be forced to reveal control over her laptop and the files in it. The accused would be the one supplying the information that the prosecution does not have (and has no idea about). In a sense, it would be equal to a fishing expedition. The prosecution, on the other hand, says that providing the password would be the same as forcing a locked desk open, or having the owner hand over a key to a locked door. It would all be mechanical. The tricky thing about this case, if we take the prosecution’s side, is that the woman herself is the key to the lock. Handing over the password would be equal to divulging what exists in the mind. The act would not be purely mechanical or physical as the use of intelligence is involved. Surely, this would then come into the coverage of protection against self-incrimination.

There is danger for both sides. If criminals are assured that they can never be compelled to decrypt their files, then they can lock everything away and commit crimes with impunity. On the other hand, if a person can be compelled to disclose encrypted information, rights to privacy, security and self- incrimination will be impaired. As one brief said, “new technologies present new challenges for law enforcement, but this reality does not justify the abandonment of well-established constitutional protections that secure individuals’ rights”. A balance is therefore needed for upholding individual rights and governmental interests.


Krystel Jehan M. Bautista, entry no. 4

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