Forced Decryption Ruled Unconstitutional, Case Study Example

Analysis

The 11^th U.S. Circuit of Appeals ruled that “a person under investigation in a child-pornography case could not be forced to produce the encrypted contents of the hard drives on his lap top or the information contained on five external hard drives” (Charette, 2012, para. 1). This means that governing bodies cannot force a suspect under criminal charges to issue forth their passwords or encrypted material on their personal computers or lap tops because that would be self-incriminating. Under the rule, police or government agents have to already have sound evidence of criminality in order to force suspects to hand over this kind of information. The 11^th U.S. Circuit of Appeals was right in ruling in this way. People should not have to be forced to incriminate themselves. If police and government agents are doing their own investigations and doing them right then there will be enough evidence to convict a person and thus the codes would only be necessary as secondary or tertiary evidence. There needs to be physical proof of wrong-doing in order for a person to face conviction otherwise handing over such codes would be self-incriminating.

If this was overruled then people could be randomly asked to hand over their encryption and while this would supply perhaps an outcome of criminals being prosecuted because of information found on their laptops, this would also be a very invasive act by the government similar to British troops occupying colonialists’ houses which the Third Amendment speaks to. The government would be walking a very thin line if it were to allow encryption codes being handed over to the police permissible.

Evaluation

Forensic investigations do not hinge upon a person’s ability to self-incriminate. If the person in this appeal were suspected of child pornography then there would be other evidence to supply and confirm guilt other than a laptop. From a forensics standpoint, while access to a laptop with undeniable proof of criminal activity (in this case child pornography) would be extremely beneficial to the case it stands to reason that there needs to be a suspicion of guilt in criminal activity to even desire to have access to the laptop. If there is a suspicion of criminal activity then there are absolutely other forms of evidence that can support criminal prosecution against the suspect. Things like dates and times the crime occurred, witnesses, fingerprints, etc. From a forensics standpoint evidence accumulates everywhere and it just takes a careful task force to secure it.

There is this issue of an “open door” for criminal activity in a case like this. If suspected child pornographers aren’t made to hand over their encryption codes then they may see this having reached a safety zone in storing incriminating evidence on their lap tops. This however is not the case. Forensics builds cases out of other things other than laptops and cyber evidence. There are the items listed above that contribute to a strong case against child pornographers, and there is visceral or hard evidence other than what may be found on a lap top. Just because the 11^th U.S. Circuit of Appeals ruled the way that it did does not mean there will suddenly be an “open door” for criminal activity. The ruling doesn’t make the crime happen, criminals make crime happen.

Position         

While technology is moving at a rapid speed (the fastest in the history of human existence actually) this does not mean that the Criminal Justice System cannot keep up. As a matter of fact, with all of the resources and access that the government has to cutting-edge technology there is no reason that it cannot curtail crime that has equivalent technology at its means. This does not however mean that the system doesn’t need reformed because as it stands currently it does. Thomas (2014) states that there are “many systemic problems [and]…efforts are being made to reduce the demand in the system by tackling those offenders with the highest rates of reoffending and improve the use of new technology for sharing information between partners” (para. 4). Some ideas that are currently generating in the system include “digital transfers between agencies” (para. 5) such as full access to fingerprints from different agencies thereby curtailing red tape that exists between departments in gaining access to a suspect’s potential identity. One very real way this is being done is through IPhone apps that allow officers fingerprinting capabilities on a digital scale.

Another initiative includes “developing a strategic approach to improving the collection of rate of fines and confiscation orders” (para. 6). An organized system of digital calendars between offices linked to IPhones as well as a stream-lines system where texting is used for quick transfer of information between arresting officers and judges who give warrants is also forthcoming in how police officers utilized new technologies in order to keep up with an ever progressive world technological crime. In short however it takes a whole system approach in order to secure ultimate efficacy within the police force and other government agencies. The key to this however seems to be collaboration and transparency. If technology is to be implemented into solving crimes then it needs to be fully accessible to all agencies in order to be quick and responsive, especially in a field where time is of the essence.

References

Charette, R. (2012, Feb. 27). U.S. Courts rule for –and against-protecting a suspect’s hard drives. Spectrum. Retrieved from http://spectrum.ieee.org/riskfactor/computing/it/us-courts-rule-for-and-against-protecting-a-suspects-hard-drives

Thomas, A. (2014, March 7). The criminal justice system: landscape review. National Audit Office. Retrieved from http://www.nao.org.uk/press-releases/criminal-justice-system-landscape-review/