Sunday, February 26, 2012

Encryption equals Privacy???

Does the Fourth Amendment provide us protection if we encrypt our communications? Good question, the answer is still being ironed out in the court cases in court both state and federal levels. Further more to keep matters in the dark some of the courts finding is based on a specific case so we can’t generalize a general court ruling that we can apply across the board.

Orin Kerr, a Law Professor at George Washington University - Law School believes that the Fourth Amendment does not offer us any protection for encrypted data. He argues, “that Fourth Amendment regulates government access to communications, not the cognitive understanding of communications already obtained.” Mr. Kerr bases his argument on previous court law where court upheld the government’s effort to patch together 5/32-inch strips of paper to obtain information for their case. Further the FBI that translated conversations into English and law enforcement has undeleting files stored on a computer. All of these actions have been upheld by courts as permissible and did not provide the defendants any level of privacy. His point is the “Fourth Amendment does not protect the individual if the government decides to devote its resources to decrypting the communications and manages to succeed.”

We in IT view encryption with a lock-and-key metaphor.  Kerr’s opinion is the lock only makes the communication inaccessible by making it incomprehensible, similar to Arabic text or to physician handwriting.  We may look at Arabic with the same view a text encrypted with PGP.

Ok, but can the court make us give them the password/key to decrypt our data? Again the answer is maybe. Currently there are no model court cases for clarity. We have cases where the court has held defendant in civil contempt and ordered him to divulge the password and cases where the defendant’s right based on the Fifth Amendment privilege not to self-incrimination himself has been upheld. 

Use encryption to protect information against hackers but encryption may give you any privacy in court.

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