Is encrypting your hard drive a way to protect against government intrusion?

by Paul Rubell, Esq.

After the recent NSA revelation about data snooping, an ancient adage has never become more profound or relevant: “A man’s home is his castle.” (Sorry for the chauvinism, but that is the old saying.) Courts have long used this theme to enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Recently, a federal district court in Wisconsin expanded this legal principle to protect your Fifth Amendment right not to incriminate yourself. In that case, the judge ruled that a defendant in a criminal action cannot be compelled to decrypt his computer hard drives and storage devices.

Wand My Home is my castle nr 2

From this and an emerging trend of case law, it is becoming more and more clear that you can keep your digital data private from government intrusion simply by trying to do so.

Sounds odd, but the act of encrypting your hard drive can prevent the government from inspecting your computer’s contents. I’m not saying that the government can’t break your encryption code; rather, it’s that because you tried to protect your data, the government is not permitted to force you to unprotect it.

In the recent case from Wisconsin, the government had probable cause to believe that illegal files and data containing child pornography were stored on the defendant’s electronic devices. The defendant, a senior software developer employed by a major corporation and a co-inventor of a patented technology, had the ability to encrypt data to avoid detection by outsiders, and he successfully dodged the prosecutors’ ability to procure incriminating data from his hardware. It appeared from the names of many files that the files contained illegal images and videos.

The government sought a Writ to compel the defendant to require him to assist them in obtaining the unencrypted files. The Court denied the government’s application for a Writ on Fifth Amendment grounds, by ruling that the very “act of producing evidence has communicative aspects of its own, wholly aside from the contents” of the files that are produced. The Court pointed out that although the file names implied that they contained illegal content, the prosecutors were unable to confirm that they even contained any data, let alone illegal data. As a result, if the defendant were compelled to provide the unencrypted files, the defendant would be forced to concede (1) that the documents exist; (2) that he has possession or control of them, and (3) that he believes that the documents are authentic. In re: The Decryption of a Seized Data Storage System (Case 2:13-mj-00449-WED files 4/19/2013).

Back in 1967, the U.S. Supreme Court ruled that “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 210; United States v. Lee, 274 U. S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S. 727, 733.”

It sounds as if encrypting your data storage devices can protect you from government intrusion, no matter what kind of material is stored on them.

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