Digital privacy has been in the news this week. The first story involves a judge ordering a woman to decrypt her laptop. There has been a lot of uninformed commentary surrounding this story, and I thought I’d add my own to the pile. My initial reaction was that it was a pretty blatant violation of the Fifth Amendment, but after further reflection, I’m not so sure. I still struggle to find the right parallel to the physical world.
I don’t believe that decrypting the data is self-incrimination, in and of itself. A person can’t avoid a search warrant by simply locking the door. On the other hand, the police already have the data (in some form) in their possession. There’s no requirement that the data be in a form that the state finds convenient.
Overall, I’m not that concerned with this decision. A valid warrant should be sufficient to require a person to turn over documents in an unencrypted form. Failure to comply is rightly contempt of court. The only problem is when a person legitimately forgets the key, because it is nearly impossible to determine if they have legitimately forgotten. Still, I’m not at all convinced that this ruling is a death knell for the Fifth Amendment.