Tuesday, June 4, 2013
Jeffrey Feldman: Must decrypt computer, incriminate self in direct violation of constituation... or face "indefinite prison time without trial"
If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?
That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues of the wired era.”
Shellow is making a novel argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government. That’s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.
“Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data,” Shellow wrote in a court filing. (.pdf)
In a telephone interview Monday, she said “this area is a new way of thinking about encryption.”
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