Relentless Pursuit of Wisdom and Liberty

The weblog companion of, dedicated to pondering, "If Patrick Henry could see us now..."

Wednesday, June 01, 2005

Caution: encryption is now evidence of intent

A Minnesota appeals court has upheld a trial court ruling that just the existence and use of an encryption application (in this case, the widely renowned PGP) can be admitted into evidence and used to point to intent. According to the testimony of a retired police officer quoted favorably by the judge, it's especially relevant if no one but the NSA can break the encryption. Heh.

You don't have to be a rocket scientist to see the slippery slope here, from 1) having encryption is another point of evidence of illegal intent, to 2) having encryption can be the only point of evidence of illegal intent, to 3) having encryption is probable cause and will uphold search warrants and "sneak-and-peeks". I guess when we get to that point anyone who uses PGP encryption, Outlook's encrypted email, or even just a username/password to login to their own PC will be subject to this kind of ruling, regardless of the lack of any other evidence or probable cause.

UPDATE: A post over at Volokh Conspiracy corrects the hysteria, detailing how the existence of PGP was only determined relevant because it supported the testimony of the victim, and without strong additional evidence it would not have been relevant. Still not sure I like it, but those guys are the legalese experts, not me.


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