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The JETLaw editorial staff is excited about Volume 14! Below is a sneak preview from an Issue 2 article written by John Larkin. John Larkin received a J.D. from Villanova School of Law in 2009 and currently practices in the Appeals Division of the Montgomery County District Attorney’s Office in Pennsylvania.
COMPELLED PRODUCTION OF ENCRYPTED DATA:
Through the Lens of the Hurst Case.
The myth is that shadowy and powerful government agencies can crack the encryption software that criminals use to protect computers filled with child-pornography and stolen credit-card numbers. The reality is that cheap or free encryption programs place protected data beyond law enforcement’s reach. If courts seriously mean to protect the victims of Internet-crime – all too often children – then a legal mechanism must be adopted to supply the technological deficiency.
To date, police and prosecutors have relied on subpoenas to compel defendants to produce their password, or to decipher their protected data. This technique has met with indifferent success. The better solution is to couple a subpoena for the deciphered data with a warrant that specifies what and how to search. If the defendant refuses to produce the deciphered data, he can be held in contempt.
Some defendants, however, will prefer contempt to compliance, where handing-over protected data means the certainty of a lengthy prison sentence. This suggests that an additional legal mechanism is required to allow fact-finders to look into protected data. This article proposes a missing-evidence instruction as a surrogate for actual inspection, where defendants refuse to comply with court orders to produce deciphered data. In other words, this article argues that, if a warrant, a subpoena, and contempt cannot induce a defendant to decrypt his data, courts should issue an instruction that the fact-finder may presume the missing data to be incriminating.
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