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May 31 2013   5:57PM GMT

Judge Reverses Himself on Revealing Encryption Keys in Child Porn Case

Sharon Fisher Sharon Fisher Profile: Sharon Fisher

Courts have been ruling one way or another in the past few years about whether someone accused of encrypting incriminating information needs to reveal the encryption key to law enforcement. Now we actually have a case where the judge reversed himself.

In April, Judge William Callahan ruled that Jeffrey Feldman — a Wisconsin software engineer accused of possessing child pornography, and who had 16 storage devices, nine of which were encrypted —  did not have to reveal his encryption key, saying it would violate his Fifth Amendment right against self-incrimination.

But this week, Judge Callahan reversed himself. His original ruling had been based on there not being enough evidence tying Feldman to child pornography or the disk drives in question. However, prosecutors were able to decrypt one of the drives — out of a total of almost 20 TB of storage — and reportedly found some 700,000 child pornography files, along with enough personal information about Feldman to tie him to the disk. This was enough to persuade the judge to change his ruling.

This is part of a continuing process where courts are trying to figure out what an encryption key is, legally speaking.  Is it a physical thing, like a key to a lockbox, which is not protected by the Fifth Amendment? Or is it like the a combination to a safe — the “expression of the contents of an individual’s mind” — which is protected? In some countries, people have even been jailed for refusing to reveal an encryption key.

This case, like most of the other ones regarding revealing encryption keys, has to do with child pornography, which adds another nuance to the issue. Are law enforcement and the legal profession more likely to push the envelope of legal search because they so badly want to catch child pornographers? Or because they think people will be less likely to criticize their methods because the crime is so heinous? (Or as Mike Wheatley put in his blog, Silicon Angle, about the original case, “Data Encryption Makes Perverts Untouchable.“)

“That’s also the whole point of the Bill of Rights: ‘mere suspicion’ is not enough to let the government search your premises and invade your privacy; the government needs actual evidence of wrongdoing before it can interfere with your life,” countered Jennifer Abel, in the Daily Dot, about the April case. “Nowhere in the text of the U.S. Constitution does it say ‘All rights listed herein may be suspended, if cops suspect you did something really really bad.'”

Legal experts expect the issue will eventually be decided by the Supreme Court.

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