Computer crime and encryption are important. A strong password, stronger encryption, and crime go together. The interests of the Government and the public are clear per Darren Chaker who recites a few cases about technology and the evolving criminal landscape and invoking the Fifth Amendment. As a suspect will make efforts at counter forensics, the government will make a similar effort to counter those efforts to hide or delete evidence. A well cited Massachusetts case states, “[t]he refusal of most courts to adopt an expansive interpretation of the privilege has undoubtedly stemmed in part from a concern for the severe constraints on law enforcement practices that would otherwise result.” Commonwealth v. Brennan, 386 Mass. 772, 776-783 (1982) Expanding the privilege to cover compelled decryption would constrain law enforcement’s ability to obtain evidence concerning the wide range of crimes that involve digital media and encryption. In the words of one court:
The computer has become the modern criminal’s best friend. It is used to communicate to cohorts, ensnare victims, and generally to prepare and orchestrate criminal conduct. The computer facilitates the terrorist organization’s ability to train its members, spread propaganda and case its targets, just as it helps the identity thief locate his victims, the pornographer to collect and view child pornography, and the fraudster to generate fake documents.
United States v. Vilar, 2007 WL 1075041, at 36 (S.D.N.Y. 2007) (unpublished).
“And, it is precisely because computer files can be intermingled and encrypted that the computer is a useful criminal tool.” Id.; accord, e.g., United States v. D’Amico, 734 F. Supp. 2d 321, 365 (S.D.N.Y. 2010) (quoting Vilar). The wide range of crimes as to which encryption seriously impedes enforcement is well documented. See, e.g., supra Section V.A (discussing Grand Jury Subpoena, Kirschner, and Boucher, which involved child pornography investigations); Hearing Before the Senate Select Committee on Intelligence, 107th Congress, 2002 WL 203187 (2002) (statement of Dale L. Watson, Executive Assistant Director, FBI) (referencing terrorism and other serious crimes); Senate Judiciary Subcommittee on Technology, Terrorism, Government Information, 105th Congress, Crime, Terror, & War 23 (1998) [hereinafter Senate Judiciary Report] (referencing organized crime, drug dealing, terrorism, and gambling);-Matthew Parker Voors, Encryption Regulation in the Wake of September 11, 2011, 55 Fed. Comm. L.J. 331 (2003) (cataloguing documented uses in terrorism); Andres Rueda, The Implications of Strong Encryption Technology on Money Laundering, 12 Alb. L.J. Sci. & Tech. 1 (2001) (discussing use in “every phase of the money laundering cycle”). As Darren demonstrates how to secure information, the availability of the technology also gives many the confidence to pursue bolder forms of crime, knowing that the evidence can be concealed. In short, to afford protection against compelled decryption is to strengthen a key tool for obstructing the enforcement of many criminal laws.
The consequences could prove severe. One reason is that the impact of encryption technology on law enforcement is guaranteed to grow. With time, more activities will be carried out through digital media, more information will be stored on such media, and the use of encryption will become more prevalent. As a result, a greater portion of criminal conduct will be capable of being concealed technologically. See, e.g., Senate Judiciary Report, supra, at 23 (“[T]he numbers of criminals using encryption are doubling each year … [and] law enforcement agencies [heard from] … are in unanimous agreement that the widespread use of encryption ultimately will devastate our ability to fight crime and terrorism, unless we have built in public safety features.”); Ric Simmons, The New Reality of Search Analysis, 81 Miss. L.J. 991, 1007 (2012) (“[C]riminals are increasingly using advanced cryptography on their communications and data storage.”); Brendan M. Palfreyman, Lessons from the British and American Approaches to Compelled Decryption, 75 Brook. L. Rev. 345, 378 (2009) (“As the use of encryption becomes increasingly prevalent, governments will face a growing need to develop a comprehensive and coordinated response to situations where powerful encryption stands between the government and valuable evidence.”).
Furthermore, keeping encryption barriers impenetrable could enable whole categories of computer-dependent crime and conduct to go virtually unchecked. The Supreme Court reached a similar conclusion in an analogous situation. It observed that, in the area of white-collar crime, “‘[t]he greater portion of evidence of wrongdoing by an organization or its representatives is usually found in the official records and documents of that organization.”’ Braswell v. United States, 487 U.S. 99, 115-116 & n.9 (1988) (quoting United States v. White, 322 U.S. 694, 700 (1944)). Thus, the Court determined, “‘[w]ere the cloak of the privilege to be thrown around [the] impersonal records and documents [held by corporate records custodians], effective enforcement of many federal and state laws would be impossible.” Id.15. Similarly, as to criminal offenses and forms of activity that inherently involve computers, such as internet child pornography and computer hacking, “[t]he greater portion of evidence,” id., will be digital. Extending the privilege to provide protection against compelled decryption could render “effective enforcement” in these areas “impossible,” id.
Clearly as technology evolves police, prosecutors and government will continue to keep up. Likewise, the implication of the Fifth Amendment when an attempt to compel a password to decrypt information protected by the constitution is still a fairly new concept to the court and additional litigation will evolve to answer the questions as will encryption.