You didn’t want your Fifth Amendment rights, anyway, did you?

by Eileen McGuire-Mahony | 8:00 am, January 25, 2012 | Comments Off

Monday afternoon, a federal judge in Denver ordered a criminal defendant to turn over a decrypted version of her entire hard drive.

Yes, that alone should have you sweating bullets.

Worse yet, the woman, Ramona Fricosu, has only been immunized for the act of producing the material, not for anything that might be found.  The courts openly sought to force her to produce incriminating evidence and a judge smiled on that idea.

Legal types can (and likely, will) go on ad infinitum about the precise wording of the ruling and the meaning of every last comma.  I myself indulged in a little when the case’s decision was still imminent.  Fricosu may have held there are case-specific facts that make the defendant’s Fifth Amendment claim legally invalid, but this is not a good sign that future cases will

Hair splitting sophistry aside, this realistically is a sign the government is no longer even pretending not to be waging war on privacy.  Anyone with regard for their personal life is now going to need to go much further than merely encrypting a drive – and encrypting an entire computer is not a ‘nothing’ step toward describing privacy.

The usual rejoinder from naive sorts convinced the state never spies on ‘good’ people and from the state itself is the tired old ‘If you’ve done nothing wrong, you’ve got nothing to hide’ trope.  Indeed, that’s just what the U.S. Attorney’s office implied in applying for Fricosu’s compelled decryption, explicitly saying that allowing the woman to decline to decrypt her computer would set a precedent allowing terrorists, child rapists, and other assorted creeps to get away with anything; and implicitly stating that the only people who ever actually try to protect their privacy must be nefarious and reprehensible.

Directions for seeking compelled decryption came from D.C., a clear signal that this was never a standard procedure undertaken in Denver; this case always represented the opportunity for the state to move one step closer to rendering any encryption and data protection available to civilians utterly moot.  Anyone who has followed the tenor of civil rights and privacy since 9/11 won’t be surprised.  On all things related to how far the government can go in surveilling tax payers, Bush felt, and Obama feels, that nothing is too far.

Already, we are operating in a theater where ISP providers must save user records for longer and longer spans; where many of the companies that hold your data will turn it over to the state on request, rather than requiring a subpoena or warrant; and where the government openly seeks to require that any encryption technologies have backdoors for the government.

We are told the awesome privilege of snooping through the most personal papers of 300-some-million Americans will be available only to those who ‘need’ it and will be used sparingly.  However, that the state is willing to trample on the Bill of Rights itself to prosecute what is, in the end, a minor criminal trial – nothing at all to do with the twin stand-bys of terrorism and child predation -should tell us very differently.

Savvy types have already thought through the implications of how someone could retain a meaningful Fifth Amendment claim in the face of courts who clearly see that right as an inconvenience, but no one tuned in to this debate thinks the trend is anywhere other than toward decreasing privacy and, thus, decreasing privacy, which ultimately means decreasing freedom.

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