Diaries, Encryption, and Privacy

This page was last updated on Sunday, August 26, 2012

Can Your Diary be Used Against You?

Previously, the Supreme Court held that the Fifth Amendment protected an individual from having to produce all of their personal papers and documents. This meant that prosecutors could not compel a person to produce documents that could result in that person's self incrimination. The problem then was that prosecutors could assume that a document was incriminating when it could be nothing of value. On the other hand, perhaps someone constructed the document with the intent to mislead. So the question is now who controls a person's private diary? Evidently, the courts do. After all, they are the ones who want to pry more pruriently.

Now the Supreme Court says that the Fifth Amendment does not protect the contents of the documents, especially in matters of published libel. As a side note, some dictionaries do not make the distinction between published libel and uttered slander. The point is that the Fifth Amendment could protect the creation of documents when that act resulted in the disclosure of incriminating personal communication as a ledger or diary. So the act of producing these documents became proof that the document existed. The point is that although the document exists, its contents may or may not be true. The reason for this is that many people keep personal diaries for their own purposes and do not intend them to be read by others. That would be and is a breach of trust.

So any effort to compel production of personal diaries provokes strong reaction from many millions of Americans who keep their most intimately personal musings in their diaries. Once a diary is subject to the whims of the courts, then nothing would provide protection against the prying of a persistent and venal prosecutor.

The Government's Right to Spy

The dollar bill has two identical serial numbers, one on the upper right of the bill and the other on the lower left. Suppose you are in a waiting room and you pick up a magazine. A dollar bill drops to the floor and you pick it up. Then you realize that the bill has been torn in half and you have it. So who has the other part of the bill and why was the bill torn in half? Couldn’t that bill be a key to the holder of a secret message? After all, no two torn bills are precisely the same.

Encryption is a procedure that changes a message to disguise it. But the courts take another attitude toward private encryption. They believe that a person who is encrypting their papers is hiding something and they, (the judges) want to know about it. Is this probable cause or just a nosey judge that has an itch in all the wrong places?

Since ‘privacy’ does not appear in the Constitution, it doesn’t mean that the Government has the unfettered right to spy on its citizens or other persons. That’s what the Fourth Amendment is all about, the right of the people to be secure in their homes and their effects. The problem lies with the question about ‘probable cause’ and what does it mean. It means whatever the government wants it to mean. Otherwise, they wouldn't be spying on you.

As computers have become more common, the need to encrypt certain data must have full and actual protection under the Fifth Amendment. However, the problem is that the word ‘privacy’ does not appear in the Constitution. Moreover, the Government’s position is that it has the right to ‘spy’ on its own citizens and other people anywhere in the world.

So the question is this, could the government compel the owner to decode his own papers? The Government would likely claim that if the diary or other paper is encrypted then that’s proof that the owner is hiding something that is illegal. Therefore, the encrypted document is contraband and subject to seizure and examination. But this is exactly what the Constitution was supposed to prevent. A person's diary, papers, and effects are their own property and that right has to be respected.

Edward Steven Nunes