If you think of your personal computer as almost an extension of yourself, a recent federal court ruling in Colorado sounds a little disturbing. The court has ordered that a woman decrypt files on her laptop so they can be used by prosecutors against her. The woman, who is being tried for mortgage fraud, argued that this is a violation of her Fifth Amendment right to keep from testifying against herself, but the court sees the matter differently. Timothy Lee at Ars Technica’s explanation of the problem gets to the heart of it:
In previous cases, judges have drawn a distinction between forcing a defendant to reveal her password and forcing her to decrypt encrypted data without disclosing the password. The courts have held that the former forces the defendant to reveal the contents of her mind, which raises Fifth Amendment issues. But Judge Robert Blackburn has now ruled that forcing a defendant to decrypt a laptop so that its contents can be inspected is little different from producing any other kind of document.
For some, being forced to decrypt your computer and handing over your password to investigators so they can decrypt it might not seem that different—what’s hidden by your password might well feel as much a part of your mind as your password. But when you think about the precedent a ruling in the other direction might set, things get cloudier. The Department of Justice argues that if encryption is all that’s required to keep documents out of the hands of the courts, then potential child pornographers, drug smugglers, and others can refuse to hand over evidence on the grounds that it’s encrypted. Hmmm.
Another case from this week that shows the difficulty of aligning the modern sense of privacy with the law. The Supreme Court ruled that sticking a GPS device on a suspect’s car to track his whereabouts, without a warrant, is unconstitutional. But the court was divided as to why, on a very important point.
Justice Scalia and four other justices, mostly more conservative members of the court, argue that it’s the physical placement of the device that’s a violation here. “The Government physically occupied private property for the purpose of obtaining information…We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted,” Scalia wrote in the majority opinion. But the other four justices got behind Justice Alito’s minority concurring opinion that tracking anyone via GPS even when physical intrusion isn’t required—for instance, tracking people using the GPS in most phones—without a warrant should be considered unconstitutional. But it’s Justice Scalia’s version that has the weight of law. Tracking you by watching your phone’s perambulations without getting a warrant is still legal.
John Villasenor at Scientific American has a pithy, and sobering, explanation of why this ruling doesn’t really make us any safer from future Fourth Amendment violations, given the way technology works:
For all of us, and not only for criminal suspects, the days when being tracked is the exception rather than the rule are drawing to a close. To the extent that our location on January 10, 2014—or, for that matter, on January 10, 2012—remains private, it is not because the records to remove that privacy do not exist, but only because no one cares sufficiently to access them. Inevitably and inexorably, we are building an infrastructure that enables location surveillance decisions to be made retroactively, reducing the need to determine in advance who should be surveilled.
In other words, we’re all being tracked, or will be tracked in the near future. The problem going forward will be controlling who has access to that information. Sneaking up to a car and slapping a tracker on it is fast becoming an obsolete way to define intrusion.