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Applying 18th century laws to 21st century cases
March 1st 2012 -

If there is one thing that Americans embrace and defend with passion, it is the U.S. Constitution. That such a document has endured more than two centuries of scrutiny with only 17 accepted amendments (and discounting two, the 21st Amendment which repealed the 18th Amendment) is a testament to the foresight and wisdom of the nationís founders. Technology however is no respecter of tradition and never before has this been more evident than since the emergence of the digital age. Despite libraries full of case law and precedence, sometimes even the most fundamental of principles must be evaluated in the scope of modern circumstances and applied diligently according to the foundersí original intent.

There are two current cases drawing national attention which illustrate how technology is forcing the Judicial Branch of government to ply constitutional understanding further than it has ever been tested before. The first has been an ordeal of rulings and appeals dating back to 2005 in which during a lengthy police investigation the task force affixed a GPS tracking device to the suspectís vehicle for nearly a month in order to track his movements and ultimately to lead them to the evidence required for his conviction. By todayís standards, the technology employed in the case was pretty archaic but the principles at stake became a citizenís presumed right to privacy when moving around in public space and the 4th Amendment protection against unreasonable search and seizure without probably cause. That the police could not have accomplished the same tracking effort by the use of manned resources was the governmentís argument and the use of the GPS device simply aided in the tracking efforts without the need of 24-hour surveillance of the suspect.

The Supreme Court did not disagree with the assertion that the movements of citizens in public can be reasonably monitored but the justices did take unanimous exception to the implementation of the GPS technology directly to the suspectís vehicle without his knowledge and without a probably cause warrant Ė that action crossed the line and violated the 4th Amendment. Today, most of our cars have GPS tracking built in by the manufacturer for our benefit and safety. The cell phones in our pockets are also easily tracked by GPS as well as signal triangulation between cellular towers. The post-9/11 acceleration of surveillance technology, providing higher-resolution security cameras on virtually every street corner in the nation, also suggests that the presumption of citizen privacy in public space is all but nonexistent already. These and so many other digital tools are fast becoming mainstays of the law enforcement community because they are omnipresent, unbiased and economical. The only thing standing between privacy and surveillance of an Orwellian scope is the 4th Amendment protection against unreasonable search without probably cause. This is the principle that the justices intend to protect from erosion even if the continued evolution of technology challenges it in the future.

The second case is primed to become a landmark ruling in the contest of citizensí protection against self-incrimination outlined in the 5th Amendment. In the current headlining case, a Colorado woman is under investigation for her involvement in a mortgage scam and has been ordered by a judge to aid in the decryption of data contained on her computer which is expected to yield the evidence necessary to proceed with her prosecution. Her attorney has posited that compelling her to provide her password in order to obtain the evidence required for the prosecutionís case is tantamount to self-incrimination; meanwhile, the prosecution is relying on well-established precedents in which a defendant shall be compelled to produce evidence under subpoena without regard to the form it takes, be it material or digital. In a similar case back in 2010, a Michigan judge ruled that the defendant could not be compelled to reveal his password to his encrypted data as that would be tantamount to self-incrimination. A year earlier, a Vermont judge determined that the defendant in that case was guilty of obstruction of justice by failing to reveal his password. The pendulum decisions of these lower courts can serve as the framework for a case that would ultimately land in the Supreme Court for a definitive ruling.

In the Colorado case, the argument has devolved into an exercise in semantics which may or may not have bearing on the ultimate direction of this contest between digital encryption and self-incrimination. While the defense attorney may gain acceptance of his assertion that being forced to reveal her password defies the definitions of self-incrimination, the prosecution will be equally satisfied if the defendant provides an unencrypted copy of the computerís contents Ė thereby falling in line with the mandate to produce evidence under subpoena. Failing to do so or attempting to destroy the digital evidence would be no different than failure to turn over material evidence or attempting to destroy the evidence to evade prosecution. Of course there is nothing stopping the defendant from feigning senility, claiming not to be able to remember the password and thereby frustrating the prosecutionís case.

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