Encryption and the Fifth Amendement
The deputy AG says that there has never been an absolute right to privacy. This is a firm statement by someone in authority and it needs to be examined in the context of the Fifth Amendment.
The Fifth includes the requirement that “nor shall be compelled in any criminal case to be a witness against himself,”
The contents of an encrypted file could well include information that could lead to prosecution of the witness, either directly or through association with others (known or unknown) through the wide ranging conspiracy laws. The whole nature of secret information is that it is not known to the examiner. Only the holder of that information knows its true nature which is why invoking the Fifth is difficult to challenge. Grand Juries can grant immunity but only under local jurisdiction. What happens if declaring that information makes you a criminal outside the USA. Immunity is limited. Extradition complicates matters. Can a Grand Jury grant immunity for any and all crimes that it won’t know about until the information is exposed. It is a Catch-22.
So what is the difference between the contents of an encrypted file and knowledge in a witness’s head? Imagine if you will that rather than place information in an encrypted file, the witness chose to memorise it. The actors playing Hamlet have to memorise roughly 1500 lines (about 12,000 words) and deliver them in public. That is a lot of information.
I can envisage a slightly humorous scene in a courtroom where the deputy AG is enforcing the handing over of encryption keys. After much objection by the witness and lawyers, the Judge rules that the file must the decrypted on pain of nasty punishment and witness hands over the keys. The file is decrypted and reads “Everything you need to know is in the witness’s head.” I suppose the deputy AG would claim the fifth doesn’t apply any more.
Biting the hand that feeds IT
