Recently updated on September 7th, 2023

As Computer Forensic Examiners and Data Recovery specialists, we are constantly torn between various constitutional amendments, including when talking about data encryption. The Fourth Amendment is the most common amendment we come across.

What we’re supposed to do

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.

Image art illustrating data encryption: padlock above a set of devices

How can data encryption affect court cases?

However, what do we do with data encryption? Data encryption is not like a wall safe or a key lock that is “physical per se” where we can require or subpoena a key. If we subpoena an individual they can plead the Fifth 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 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.

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