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Forced Decryption in Government Investigations
In the old days ' that is, just a few years ago ' encryption had something of a negative connotation among many law enforcement officials. If a suspect encrypted his files, the thinking went, he must have something to hide. That is far less true today. Encryption has gained much broader acceptance, and is more available, than ever before. Among other factors, state data breach laws generally provide a safe harbor for breach victims whose information was encrypted. Today, consumers can buy hard drives and thumb drives where encryption is the default. And in the wake of the Snowden leaks, makers of encryption products can expect a strong uptick in demand, as encryption will likely become even more widely used.
When I served in the Justice Department's (DOJ) Criminal Division, we grew increasingly concerned about the challenges posed when agents attempted to execute search warrants for computers or other digital media, only to discover that those media were encrypted. Where appropriate, we issued subpoenas or obtained court orders directing the suspects to decrypt the digital media or to provide unencrypted copies. When those suspects challenged the subpoenas or orders, the result was a showdown of sorts between the Fourth Amendment and the Fifth Amendment.
We litigated this issue aggressively when I was at DOJ, and targets of these orders pushed back with equal force, in some cases incurring contempt sanctions for failing to comply. Now that I have moved to “the other side of the aisle,” it's fair to say that I approach these issues from a different perspective. But no matter which side of the issue you're on, this will become an even more significant battleground in the years ahead, as more and more computer users ' both the innocent and the allegedly not-so-innocent ' adopt encryption as a standard operating procedure.
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