Apple Showdown Heightens Challenge of Encrypted Data

The clash between the Justice Department and Apple over the court order requiring the company to weaken the security functions on the iPhone of one of the attackers in the San Bernardino (CA) shootings is only the latest instance of the government’s effort to deal with encrypted data. The real challenge is how the courts will apply constitutional protections drafted in the 18th century to deal with the rapidly changing world of digital technology. A stumbling block for the government in obtaining encrypted data is the Fifth Amendment privilege against self-incrimination, which can be used to thwart efforts to get passwords required to unlock encrypted files.

In the world of cryptology, a secret code known only to the user usually means that the information could be kept away from the government unless there is a means to compel the person to reveal it. Unlike an individual, companies cannot use the Fifth Amendment to encrypt their files to keep them away from the government because that constitutional protection does not apply to organizations. With the Justice Department’s recent emphasis on identifying individuals involved in corporate misconduct as the primary measure of cooperation, getting to the personal data of employees can be crucial to proving a case, especially if companies encourage them to encrypt files as a security measure. It may be up to the Supreme Court to decide whether the privilege against self-incrimination protects individuals from having to turn over passwords to help the government obtain evidence that may well end up convicting them. The digital age is making it much more difficult to figure out how far the Constitution should go in dealing with forms of information that were largely unknown a generation ago, much less when the Fifth Amendment was adopted.