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Copyright (c) 1996 The University of Chicago
The University of Chicago Legal Forum

Article: Compelled Production of Plaintext and Keys


The University of Chicago Legal Forum

1996 U Chi Legal F 171


Phillip R. Reitinger *


While many features of computer networks that may adversely affect privacy are outside of an individual's control, the ability to encrypt information may provide computer users with near absolute privacy for the content of their communications and stored data. In part for this reason, privacy advocates suggest that universal, strong encryption is a bulwark against the intrusion of government into personal privacy. 1 Effective protections come at a price, however, because absolute privacy also protects criminals. 2 Law enforcement, quite naturally, prefers a solution that protects privacy while preserving its present ability to gain access to data and communications, when authorized by law, to protect the public. 3

This Article will not attempt to resolve this somewhat theological debate, 4 which depends to a great degree on whether one believes, as a first principle, that absolute privacy is a social good. Instead, it will assume the continued availability and expanding use 5 of strong, non-key-escrowed encryption. 6 In such a world, the ability of law enforcement to obtain access to encrypted evidence will depend largely on its ability either to compel the production of a key or password 7 necessary to decrypt encrypted material or to compel the production of the plaintext 8 of that material from its holder. This Article will examine, therefore, the legal issues raised by law enforcement's attempts to gain access to plaintext and keys.

The principal legal obstacle to compelling production of keys is the Fifth Amendment privilege against self-incrimination, which provides ...
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