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Encrypting Data May Give Rise to a Limited Constitutional Defense
By Chet Kaufman
The U.S. Eleventh Circuit Court of Appeals broke new ground in 2012 when it held the Fifth Amendment barred the government from compelling decryption of digital media purportedly containing encrypted, self-incriminating data.1 The decision bridges a long-established defense tool, the Fifth Amendment privilege, to evolving technology, digital data and encryption. It was the first published appellate decision in the United States, in federal or state court, to hold that decryption is a privileged testimonial act. While the decision could sweep aside some of the best evidence prosecutors are accustomed to obtaining, the ground that decision breaks may prove to be less fertile than it first appears, especially because the Supreme Court has limited the Fifth Amendment rights available to many in white collar cases.
A. Encryption Made Simple
Encryption is designed to protect the confidentiality of information, ranging from military information and trade secrets to sensitive perso
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