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.
