Court ruling protects encryption keys as a Fifth Amendment right

Published 18 December 7 1:9 AM | Autonomist0

Good news for Americans:

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

If this becomes a precedent, it will be distinctly different from European countries such as the U.K, where a new law provides for up to two years of jail time simply for refusing to reveal a key.

As people's digital storage increasingly becomes an integrated part of their identity, the right to keep certain data private will become increasingly important.  The right to keep encryption keys private will increasingly mean the freedom to keep certain thoughts private, whether they are stored in wetware or digital form.

More: Crypto and Self-Incrimination FAQ

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Comments

# navaburo said on January 2, 2008 8:28 AM:

First off, thanks for the posts!

While I am absolutely disgusted by the thought of child pornography, I must say I am quite pleased with this ruling, as it reinforces my right to privacy. Particularly interesting is this paragraph from the linked pdf where we see that there is a distinction between physically and mentally stored keys.

      "In distinguishing testimonial from non-testimonial acts, the Supreme Court has

compared revealing the combination to a wall safe to surrendering the key to a strongbox.

See id. at 210, n. 9; see also United States v. Hubbell, 530 U.S. 27, 43 (2000). The

combination conveys the contents of one's mind; the key does not and is therefore not

testimonial.1 Doe II, 487 U.S. at 210, n. 9. A password, like a combination, is in the

suspect's mind, and is therefore testimonial and beyond the reach of the grand jury

subpoena."

Fascinating.

Thanks again,

   navaburo

# Crypto-Autonomist said on January 7, 2008 5:18 PM:

Adam Liptak reveals the digital privacy we can expect from the state : While "one lonely voice"

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