MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
I'm Robert Siegel.
And it's time now for All Tech Considered.
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Applying analog law to digital reality can be tricky. Take the case of Ramona Fricosu, a Colorado woman who is being prosecuted by the Justice Department for her alleged role in a mortgage scam.
Fricosu had an encrypted laptop that was seized during a search of her bedroom. Federal prosecutors want her to decrypt it so they can see its contents. Her lawyer says that would violate her Fifth Amendment protection against self-incrimination. The government says its request is like asking for the literal key to a literal safe that may well contain incriminating documents.
Well, joining us is Declan McCullagh, the chief political correspondent for CNET, who has written about this case. Welcome to the program.
Mr. DECLAN McCULLAGH (Chief Political Correspondent, CNET): Hi, there. It's a pleasure.
SIEGEL: And first, what - if anything - is the established law about encryption and password protections and the Fifth Amendment?
Mr. McCULLAGH: Well, this is what makes this case interesting and also important. There isn't any established law. A few lower courts have considered this in the past. But the facts have been different; we don't have appeals courts ruling on this; and certainly, the Supreme Court has never even come close to considering it.
So we have cases updating the Fourth Amendment or the First Amendment for the Internet in the digital age. But we've never addressed this one head on, so this is going to be very interesting.
SIEGEL: The language and imagery of computers is full of analogies and metaphors. Documents are saved in files; files are locked. Doesn't the law of paper documents and real file cabinets offer some clear guidance here as to what to do with the digital stuff?
Mr. McCULLAGH: I think you're right. Whoever wins this case is going to be the side that presents the best and most compelling analogies. In common-law systems, like the U.S., when you don't have a clearly established precedent on a particular issue, you go and try to reason by way of analogy and metaphor.
And in this case, if you have encrypted files, is that like a safe? You can be compelled, according to Supreme Court precedent, to turn over the key to a safe. But you can't be compelled to turn over the pass phrase or, that is, the combination to the safe. So what's it more similar to? And this is what courts will wrestle with.
SIEGEL: My understanding is that what was once a blanket protection of, say, diaries from prosecutorial searches has been narrowed over the years. And your dairy is about as private a communication as you can possibly ever write. It can be subpoenaed.
Mr. McCULLAGH: That's true. Like some other rights that were outlined in the Bill of Rights - the Fourth Amendment in the drug war, for instance - the Fifth Amendment has also shrunk a little. And so I think you're going to see civil liberties groups becoming interested in this as a way to, say, let's go no further. Let's refresh and revitalize the Fifth Amendment for computers and encryption and the Internet.
SIEGEL: On the other hand, I gather the government argues in this case that if encryption is considered an automatic barrier to any police search because of the Fifth Amendment, then everyone from child pornographers to terrorists to embezzlers would just encrypt. And they'd be home free.
Mr. McCULLAGH: That is their argument. And it's a reasonable argument, looking at it from a prosecutor's perspective because encryption is becoming more popular. It's becoming embedded in operating systems in a way we didn't see 10 years ago.
Apple's OSX operating system has it built in. It's called File Vault. Microsoft has a built in to newer versions of Windows. It's called Bit Locker. And so if everyone turns this on by default, prosecutors are going to have a more difficult time.
SIEGEL: Well, Declan McCullagh, thanks a lot for talking with us about it.
Mr. MCCULLAGH: You're quite welcome. Good to be here.
SIEGEL: That's Declan McCullagh, chief political correspondent for CNET, speaking to us from Stanford, California. Transcript provided by NPR, Copyright NPR.