Good news
A federal judge in Vermont has ruled defendants cannot be forced to reveal their PGP passphrase:
U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.
In this regard, the US is more sane than the UK.
This is good news, but not primarily from a constitutional angle.
The main problem with forcing people to turn over their encryption keys (any encryption keys, not just PGP passphrases) is that good encryption produces essentially random data, but on any computer, the empty space on the HD (for example) is going to contain pretty much random data as well (as deleting a file doesn’t actually zero out the bits, generally (ignoring tools like shred and the safe deletion option on Macs), but just flags the area it was stored in as being empty space), so the only thing a prosecutor would have to do if withholding encryption keys were against the law would be to claim (part of) the empty space is actually an encrypted file, cleverly hidden (which a lot of software is capable of doing). There would be no way of disproving it.
I use the empty space example, but of course this applies to steganography of any kind. If you look hard enough, you can find random data “hidden” anywhere, and that’s all you need to claim someone is hiding encryption keys and thus breaking the law. The UK’s RIPA can make criminals out of anyone.
Of course, what with the presumption of innocence it might take a mildly corrupt (or ignorant) judiciary to allow it, but let’s face it, those aren’t in short supply.
If this decision holds in appeal, this could be a very important precedent.
(Of course, since this involves an alleged pedophile, many people are getting entirely the wrong message out of this decision, and a lot of the knee-jerk retards are actually rooting for it to be overturned. Let’s hope the judge isn’t swayed by the public opinion, because the public is comprised of ignorant morons.)
Saythings said,
December 21st, 2007 at 4:13 pm
I think part of the knee-jerk problem is that (to people with kids, or even dear nieces/nephews/students/whatever), pedophile = worst kind of bad, and there’s a real sense that anyone that filthy shouldn’t have any rights anyway.
Speaking even as a *potential* mother, it’s hard for me to say that someone who is believed to be abusing (or supporting the abuse of) children sexually should be allowed to retain his privacy, even if I think it’s true for everybody else.
(Don’t get me wrong, I still think he has rights, whether he’s found innocent or guilty. It’s just that I feel some internal conflict over it because pedophilia is so abhorent to me.)
But if you dial it down to something less distasteful, then it’s much easier to just look at individual rights.
It’s a shame this became an issue over a pedophile, because I think public sentiment would be far more… well, the public is never sensible, but at least closer to sensible if this were over something like tax fraud.