5th Amendment Rights and Computer-based Crime
A current court case involving a man suspected of participating in child pornography has drawn media attention due to some possibly incriminating evidence stored on a password-protected computer drive. There have been more recent posts, but this post on news.com is the most detailed. Essentially, a judge tossed out a subpoena attempting to force the defendant to reveal his PGP (Pretty Good Privacy, a common encryption scheme) password. The decision was based on 5th amendment rights. It has been appealed. This case raises an important question: Can a suspect be legally forced to divulge passwords? With a search warrant police can require entry to a house and even to a safe, so why not a computer? A password is in some ways like the key to a house or safe. However, a computer password is not “hardware” (like a key) nor is it likely that a law enforcer could gain access without the password (a house or safe can be broken into if the key is not given). Good encryption schemes are very hard to break. It all comes down to the age old debate: which is more important, the right to privacy or the need to enforce the law? I don’t know what I would answer. I want criminals caught, but I would be outraged if forced to divulge my own password(s). Then again, I would probably be just as annoyed if my house or car were searched. Do I have the right to conceal evidence from the law? Do they have the right to demand a privileged search (assuming probable cause)? These issues didn’t even exist 20 years ago. The decision of the appellant court on this case will be critical in years to come as more and more of our lives become digitized.