If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?<\/p>\n
That\u2019s 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\u2019s attorney, Robin Shellow of Milwaukee, said it\u2019s \u201cone of the most important constitutional issues of the wired era.\u201d<\/p>\n
Shellow is making a novel argument that the federal magistrate\u2019s decryption order is akin to forcing her client to build a case for the government. That\u2019s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.<\/p>\n
\u201cSome 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,\u201d Shellow wrote in a court filing.<\/p>\n
In a telephone interview Monday, she said \u201cthis area is a new way of thinking about encryption.\u201d<\/p>\n
UPDATE: A federal judge this afternoon halted the decryption order, and demanded further briefing on the constitutional implications.<\/p>\n
Though rare, decryption orders are likely to become more common as the public slowly embraces a technology that comes standard even on Apple computers. Such orders have never squarely been addressed by the Supreme Court, despite conflicting opinions in the lower courts.<\/p>\n
The latest decryption flap concerns Jeffrey Feldman, who federal authorities believe downloaded child pornography on the file-sharing e-Donkey network. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by today.<\/p>\n