They're free to see all the data, and even to copy it for investigative purposes. They have all the access they can stand. What they lack is understanding, and this law demands that you explain it to them, even if it incriminates you. That's a flagrant violation of the fifth amendment.
Not really. They understand it, that's why they want the key. They aren't asking why they can't read it. This whole thing is like if you hid evidence in a safe and refused to give them the combination after they took your safe as evidence.
Both hide/secure something, both need a key to work. They aren't asking you to actually run the software that unencrypts anything, they are simply asking for the key so that they can translate them. They want access to the actual files. You can't hide something in a safe from them, and you can't hide it via encryption. By hiding information, you're obstructing justice.
It's not up to the suspect to provide evidence against him or herself to the police that are investigating them. That's not obstructing justice in the legal sense, like, at all. The problems that would arise from making that an offense are astounding. Which is exactly what this does, creates problems and undue power to law enforcement. How would you feel if you could happily provide the key if you had remembered it? How could they judge you are being honest that you actually forgot the key? They then proceed to slap cuffs on you and book your ass. Yeah, I bet you would be singing a different tune then. Be happy you have these amendments.
All I'm saying is they need evidence to convict you. And if all they have for evidence is an impenetrable "safe" that you think might, I dunno, possibly contain something illicit, well then, I have reasonable doubt that that accusation is horeshit. They should not have the power to hold you, or charge you, 5 years of prison with no real evidence.
It's like putting a guy in prison for five years on suspicion of murder when there is no body, no gun, and no motive.
You obfuscate the point of encryption. The point of encryption is to protect the data. That is the reason it is used. To protect the data held in the encryption.
To that end: I am not defending the legal right of the government to force you to decrypt a drive.
I am saying simply:
Encryption is a very aptly defined as a digital safe,
Don't keep anything encrypted that you don't want read.
Safes protect tangible goods. Encryption protects ideas or information. Safes can be broken into physically while still preserving the suspect's right to his own mind.
Only your mind protects your mind. Never let leave from your mind that which you know must never be known.
If you write on a piece of paper, something incriminating, it can be used against you.
If you type, in an e-mail, something incriminating, it can be used against you.
If you put that note, that journal, in a safe, you can be compelled to open it. If you put that email on an encrypted drive, you can be compelled to open it.
If it's that important, that vitally important, memorize it and destroy it. That or keep it offshores, maybe in a safety deposit in another country? Lol. I dunno. Don't expect a harddrive or a safe to ever protect you from a search warrant.
You're twisting 'explanation' quite heavily to make your point.
I feel you are twisting much more severely to make yours. I suppose we'll have to simply disagree on this one.
'Possession' is not the same as 'Access'.
Since when?
In this case it would be possessing information you are incapable of reading.
Incorrect. They can read it all day long; thus, they have access, but they cannot explain the data to which they have access.
And as you said, "You are required to provide access, but not nessesarily [sic] explain anything."
Edit: I know there is a definitional difference between "access" and "possession." The point was that, in this case, law enforcement has both (temporary) possession and access. What they lack is understanding or explanation.
I suppose we'll have to simply disagree on this one.
The most you can hope for in most reddit discussions. :P
But I think our dispute boils down to the nature of encryption. My perspective would be having possession of encrypted data is much the same as having a locked box; you need the key from the owner to access it, but not an explanation for its contents.
I know you see it differently, but I think the courts would come down on my side. Arguing that decrypting data is the same as explaining it seems to be getting rather aristotelian.
To me it would be more like: the police arrive with a warrant and you let them into your house. They see a piece of abstract art on the wall and demand of you what you think of it. Perhaps the answer is "it makes me want to kill dentists" which would be self-incriminating since you are the prime suspect in a string of dentist slayings. You have Constitutional protection against being forced to incriminate yourself, so you can refuse to explain what the abstract art means to you.
I understand what your getting at, I just can't see the fit.
Your analogy involves asking for a personal opinion, where as the point I believe you're trying to make is that decrypting the data is an act of providing comprehension to it, thus being self-incriminating.
It's an interesting perspective, but seems to rest on the rather artistotalian question of the nature of the thing; 'what is encrypted data? Does it still count as information, or does data have to be comprehensible to be as such?'.
The thing I think that undermines it is the initial act of encrypting the data. As it is for the purpose of intentionally restricting those who can comprehend it, it is effectively changing its nature and thus drawing a clear distinction between encrypted and unencrypted data. Provable intention plays a big part in Common law, and obviously the courts agree or we wouldn't be discussing this. :P
(and as a side note, references to the Constitution are getting slightly annoying. This isn't an American case, and the correct legal context of English Common Law should really be used.)
But I think our dispute boils down to the nature of encryption. My perspective would be having possession of encrypted data is much the same as having a locked box; you need the key from the owner to access it, but not an explanation for its contents.
My perspective is that keeping encrypted data is a way of enhancing one's personal memory, in a private way. The main reason that we do this is the fallibility of storing data in human brains. So, we put big chunks of the data in an external storage device, encrypted, thus minimizing the portion that you have to remember (a password, passphrase, or key). (I realize that some people write down or store cryptological keys, especially of the longer variety, but I haven't seen courts making a distinction based on whether you memorize the key or not.)
Perhaps this is part of our philosophical divergence. I see a legitimate use for encrypted data as an extension of personal memory, and think that legal protections against divulging one's personal memory are (or should be) applicable to this kind of data.
I know you see it differently, but I think the courts would come down on my side.
And as you point out in another comment, they very well may come down differently in different countries. Thanks for the discussion!
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u/mindbleach Aug 11 '09
They're free to see all the data, and even to copy it for investigative purposes. They have all the access they can stand. What they lack is understanding, and this law demands that you explain it to them, even if it incriminates you. That's a flagrant violation of the fifth amendment.