As reported by Fierce Government IT, “As cloud computing technology continues to become more pervasive, the application of the Fifth Amendment to protecting a suspect’s encrypted data is likely to become a more prevalent issue in litigation, finds a paper by J. Adam Engel, vice president of Lycurgus Group published in the Whittier Law Review.”
Until now, suspects have infrequently invoked their Fifth Amendment right against self-incrimination when the government has sought to compel suspects and defendants to provide passwords and encryption keys to access digital assets.
The use of the Fifth Amendment as a way to deny law enforcement encryption keys and passwords for cloud data will need a few tests in court. It will be interesting to see how those tests turn out, considering the government has been grabbing servers and laptops for years. This is not much different.
The use of encryption with cloud-based data will be more the norm. Indeed, Google will do so by default. However, while the government won’t typically be able snoop on that data without your knowledge, which is a good thing, if they want to see your data, they will just show up and demand it.
Most of the cases will be around domestic criminal activity, not snooping to discover terrorism using patterns of data. That may make the difference here in how these protections are leveraged in the courts. The lawyers are clearly watching.