Despite the impressions of America’s glass-half-empty types, our society tries to pride itself on the precept of “innocent until proven guilty.” That concept is Constitutionally protected through the Fifth Amendment, generally interpretted as protecting the accused from having to incriminate themselves.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Pleading the fifth takes an interesting turn with modern day encryption where courts are wrestling over the matter of a defendant’s right to not decrypt data. Colorado Judge Robert Blackburn noted, “I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer” in a case against an alleged mortgage scammer. The accused encrypted her laptop with PGP whole disk encryption and authorities believe the evidence needed to secure conviction can be found within. Analogies have been made that courts may force the accused to provide keys to open safe deposit boxes or other physical safes and therefore must provide the passphrase to open a digital safe. Furthermore, authorities in this case have acknowledged they don’t require the key and will allow the accused to decrypt the files without divulging the key. In today’s world of the 99% versus the 1%, few folks would tend to side with a mortgage scammer (or the previous instances of encrypted pedophile drives). But the tinfoil hat crowd afraid of the Patriot Act’s reaches may soon wave the banner on judicially enforced decryption for anything. There may be something to the glass-half-empty type cynicism as the Fifth Amendment has routinely been bent over the past 160 years [pdf] to serve various eras’ needs.
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