Tuesday, August 27, 2013

Feds Back Away From Forced Decryption... For Now

Wired: "Feds Back Away From Forced Decryption... For Now".
For the moment, requiring suspects to decrypt data is rare, and has never been squarely addressed by the Supreme Court.

But the legal issue is likely to become more commonplace as the public begins embracing encryption technology that now comes standard on most computer operating systems. What’s more, the public is searching to counter the National Security Agency, whose domestic spying has been thrust into the mainstream press in light of disclosures by NSA leaker Edward Snowden, [Electronic Frontier Foundation staff attorney Hanni] Fakhoury said.

"The one silver lining: I think courts are not buying into the government's theory that encryption is evidence of criminal behavior," Fakhoury said.
As lawyer/blogger Doug Mataconis has written, it depends on what analogy one thinks is more apt:
To make the analogy applicable to the types of cases that helped establish existing law, it boils down to a question of whether a computer password is like a key to locked closet or strongbox, or whether it is like the combination to a safe. Under existing law, someone served with a valid search warrant can be compelled to unlock a locked door or box, but they cannot be compelled to reveal the combination that would unlock a safe. 

To put it simply, Courts have held that the combination to a safe constitutes the constitutes of someone’s mind, and is thus protected by the Fifth Amendment from compelled disclosure while the key is simply a thing and, so long as the search warrant validly allows police to search the item that is locked, then the person whose property is being searched can be compelled to grant access.
This issue will undoubtedly resurface again.  I wouldn't be surprised if this eventually has to be resolved by the US Supreme Court.