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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.”