WIRED Staff
Security

Encryption Not Equal to More Rights

Encrypting your communications — even using the strongest algorithm possible — gives you no extra legal privacy rights, according to the good professor Orin Kerr. Kerr recently blogged his 2001 law review article, which argues persuasively, yet counter-intuitively, that wrapping your communication in code isn’t new (the Founders did it too!). He also argues that […]

license plate with pgp

Encrypting your communications -- even using the strongest algorithm possible -- gives you no extra legal privacy rights, according to the good professor Orin Kerr.

Kerr recently blogged his 2001 law review article, which argues persuasively, yet counter-intuitively, that wrapping your communication in code isn't new (the Founders did it too!). He also argues that the expectation that it would be hard for an outsider to decipher a communication or figure something out, doesn't give you legal cover to prevent the government from cracking your code or flying over your house in a plane to see that you are growing marijuana.

That doesn't mean that you have no expectation of privacy in your emails, just that you shouldn't have any higher legal expectation of privacy in an encrypted email (practically speaking, this is not true since non-encrypted email is easy to spy on but a PGP-encrypted message is obviously not).

A]s a practical matter, the privacy regime that protects Internet communications extends strong privacy protections even if encryption itself does not trigger the Fourth Amendment. This is true for two reasons. First, the practical hurdle inherent in obtaining a warrant will always be secondary to the practical difficulties of decrypting ciphertext. Second, the full panoply of Fourth Amendment protections applies to the acquisition of ciphertext, which will always precede any effort to obtain plaintext. These two factors, operating in tandem, create a strong privacy regime that protects the privacy of Internet users even if encryption does not trigger the Fourth Amendment.

In other words, in encryption algorithms you should trust, but you get no +4 bonus against government subpoenas.

Find the whole paper here (I had no luck downloading in FireFox and then trying to open it with Adobe, but was able to open it in Adobe by clicking on the link with IE).

There's also, as usual, a fine discussion of the piece over at the Volokh Conspiracy, where Professor Kerr first blogged the article.

Photo: Xurble