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.