Encryption and the Right to Maybe Remain Silent
If data is encrypted, can the police force you to decrypt it or provide them with an unprotected copy? What about self-incrimination and abrogating one's right to remain silent?
The U.K. appears to have addressed this question more frequently than in the U.S. with the U.K. often requiring individuals provide access to encrypted materials. Here are some examples:
- Animal rights activist hit with RIPA key decrypt demand - allows police to demand encryption keys or provide a clear text transcript of encrypted text.
Failure to hand over either cryptographic keys or data in a decrypted form that resides in the UK on is hosted on UK servers and affects a police or military anti-terrorism investigation could now cost the data holder up to five years in prison. All other failures to comply can lead to a maximum two-year sentence.
But the law does not authorise the government to intercept encrypted materials in transit on the internet via the UK or to attempt to have them decrypted under the auspices of the jail time penalty.
The Court of Appeal has said, though, that an encryption password is not in itself incriminating information and that both it and the information on the computers exist outside of and independent of the men. It said they do not have the right to refuse to divulge the keys.
The Federal Evidence Blog, discusses a U.S. case, In re Boucher, in its post, Compelling Access to Encrypted Laptop where the court ultimately required an unencrypted computer be provided to law enforcement officials.
Fifth Amendment Privilege was not violated by compelling the defendant to provide an unencrypted version of his laptop drive ... to the government, in In re Boucher, (D.Vt. Feb. 19, 2009) (No. 2:06-mj-91) (2009 WL 424718) (unpublished) ("Boucher II") PDF
The court's decision in Boucher, however, may only apply to the unique facts in that case and not more generally. Until a body of law has emerged, there is likely to be a continued case-by-case analysis applied in encryption issues.
