A Hard Case makes Good Law, for once.

There has been a Fifth Amendment issue driven by new technology which has been kicking around for a while now.  The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]

There are publicly available (and free) software encryption tools available to the moderately proficient computer user which would require the full on attention of the NSA to break without the key. Since the NSA won’t do that unless there is a clear issue of National Security at stake, this poses a problem for prosecutors at the local, state, and Federal levels.

The “solution” which the prosecutors have been applying to remedy this problem has been to seek court orders requiring the defendant to surrender the encryption key.

The first such case (US v Doe) to be decided by a Federal Circuit Court (the 11th out of Atlanta) concerned a defendant accused of child pornography.  The prosecutor obtained a subpoena forcing the defendant to provide the key to encrypted devices which the prosecution had been unable to decrypt.  A hard case indeed, as child pornographers get almost as little sympathy as they deserve.

Yet the issue itself seems to run afoul of the Fifth Amendment’s protection against self incrimination: “…[No person] shall be compelled in any criminal case to be a witness against himself…”  A key known only to a defendant is in no way a document or record.  The fact that the key unlocks evidence which may be compelled complicates the matter, but the key itself (if not written down or otherwise preserved outside the mind of the defendant) would seem to be protected.

While the charge is heinous, even heinous offenders enjoy the same legal protections as those we identify or sympathize with.

I view this decision as a clear victory for civil rights from about the worst sewer it could possibly have crawled from.


Hat Tip: The Wall Street Journal via Google +


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