What we’re supposed to do
As Computer Forensic Examiners and Data Recovery specialists we are constantly torn between various constitutional amendments. The Fourth Amendment is the most common amendment we come across. This amendment gives the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. We must specifically narrow our forensic scope to the topics described in the search warrant or statement of work, if we go beyond the “seeing eye” we have potentially violated a person’s constitutional rights. This can be easily avoided by having a clear understanding of the data recovery scope that clearly outlines the files needing to be recovered or forensic analysis to be performed.
How can data encryption affect court cases?
However, now with data encryption what do we do? Data encryption is not like a wall safe or a key lock that is "physical per say" where we can require or subpoena a key. If we subpoena an individual they can plead the 5 amendment which protects a person’s right for self-incrimination. The “key” is in the person’s mind which is protected under the 5th amendment. Forcing a data decryption is also an act protected by the Fifth Amendment because the government cannot identify the evidence it hopes to find without any specificity prior to the search and the act of force decryption may in fact damage or alter the data being decrypted which would prevent the evidence from being produced in a court of law as a “factual unaltered piece of evidence”.
So what do we do? Currently there is a case flowing up to the Supreme Court Ramona Fricosu vs the state of Colorado. We will soon find how unconstitutional or constitutional Hard Drive Encryption is.