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The Department of Justice wants to be able to look at encrypted data

Molly Wood Jul 12, 2011
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The suspect and her attorneys are arguing that to undo the encryption on the laptop would violate the 5th Amendment, protecting the accused from being forced to be a witness against him or herself. Prosecutors, with the backing of the Department of Justice, say that unlocking the information that’s in there should be considered part of the standard discovery process that happens in every trial. It’s being hashed out in courts right now and has a long way to go before being resolved.

We talk to Declan McCullagh of CNET, who has been watching the case. He says that it’s best to think of the case in terms of an analogy. Prosecutors say the pass phrase to the encrypted data is akin to a key to a safe full of useful information. If it was an actual safe, the defendant would be required to surrender the key.

But civil liberties groups argue that the pass phrase is knowledge in and of itself and that a defendant is allowed protection from testifying against him or herself by the 5th Amendment. “Courts already have ruled that that such protection extends to the contents of a defendant’s mind, so why shouldn’t a pass phrase be shielded as well?” McCullagh writes at CNET.

We also talk to Jeffrey Rosen of George Washington University Law School. He says while Americans are guaranteed protection from unreasonable search and seizure, the digital age has created disagreement in terms of what information is protected as personal thought versus what is admissible as evidence. The implications of this Colorado case, he says, are great: “If this court says people can be forced to turn over passwords,” he says, “any person could be forced to turn over their computer password.”

Also in this program, “Son of Strelka, Son of God” is a multi-chapter fantasy story by Dan Warren. It’s narrated (and sort of written, actually) by Barack Obama. The president didn’t really participate actively. Warren pulled three- to 10-second sound clips from Obama’s autobiography to create the story. An audio collage. Only took him four years.

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