"...nor shall be compelled in any criminal case to be a witness against himself..."
July 11, 2011 9:24 PM Subscribe
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.
The "if you were innocent, you'd have nothing to hide" argument rears its head, in a big way."Prosecutors stressed that they don't actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding 'the password to the drive, either orally or in written form.'"
posted by fifthrider (215 comments total)
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The externalizing of memory as digital data has always proven a sticking point for the criminal justice system. Now, it is the opinion of the DOJ that certain pieces of information known by a suspect, namely encryption passwords, can be treated as analogous to physical 'keys' and demanded by prosecutors- essentially stripping away the right to remain silent. The question that remains: is catching fraudsters, drug traffickers, and child pornographers worth rejecting centuries of common law principles, starting with the presumption of innocence?