Some controversy brewing over Justice Department hopes for ability to search encrypted PC files:
washingtonpost.com
Some quick background: The Fourth Amendment prevents the government from making searches and seizures without first getting permission from a judge, on the basis that there is probable cause to believe criminal activity is underway. The Fourth Amendment comes into play only where there is a reasonable expectation of privacy. Obviously, everyone agrees that your files on your PC fall within this area.
DOJ wants the ability to disable encryption (via black bag jobs in homes or getting your public key from VRSN, etc.) -- after first getting a warrant. Here's where I think they are pushing things: According to this story (I haven't read the bill itself) they would be able to try to disable encryption without specifically looking for anything incriminating. In other words, they'd go to a judge and say there is probable cause, not of existing criminal conduct, but of the possibility of criminal conduct. This is different than the wiretap standard, which is the closest analogy. There, the government places a wiretap to catch criminal conversations, and the warrant application alleges there has been ongoing criminal activity. Here, if that were true, the government would be going for a warrant to disable encryption and search the computer files for evidence of the ongoing criminal activity. But this bill doesn't make the government have to allege criminal files are stored in the computer since the warrant application won't require a disablement and search, but just a disablement. It sounds subtle, but it is significant.
The technical questions are interesting, too. Can BioLogon 2.0 or its competition be disabled in a black bag job? What about a CPU-based pattern recognition peripheral that encrypts (if one exists or is developed)? Does the FBI even have a clue how to break into that?
P.S. I don't think this bill is going to go anywhere. |
