13 July 2011

The Encryption Key:
Is it is or is it ain't covered by the 5th?

The DOJ is trying to force a citizen to give up her encryption key (that's a password to those of us who speak plain English) because they can't break the encryption on her computer. I haven't researched this issue, but it is an interesting question because a password could easily be characterized as the equivalent of a key to a physical lock box or as speech required by the government as an admission that the suspect knows what is on the computer and has control over it.

Cnet is all over this story and even has an interview with the defendant's attorney.


Donald said...

This issue got a lot of attention a few years ago in a case out of Vermont. Ultimately, the court held that requiring an individual to give up an encryption key does not implicate the Fifth Amendment.

Orin Kerr blogged about this over at the VC:


Anonymous said...

I think this case is easier because it's a typed password.

What if it were a voice recognition system? Could the government compel you to speak the passphrase, "I hate Democrats"?

What if the passphrase were something criminal, like a threat against the President?