terratogen wrote:
If you put an encypted file in a password protected stuffit file, would that give the file fourth ammenment protection from the access needed to open the stuffit file and actual protection from the encryption?

Why would stuffit creat an expectation of privacy where encryption doesn't? I think that it would be couched as "understanding" just as encryption is, under this theory.

If you are handed a warrant demanding "access" to some file, you should not be required to surrender your encrypted key as well because "understanding" is not required by law, right?

I think you would unless you claimed a 5th amendment right. They would imprison you for refusing to disclose the key. Think Judith Miller.

Somehow I think that the analogy doesn't hold water.

There is a huge gap missing in the analysis, and that is the 4th amendment protection for communications in transit. This same lawyer has argued that the 4th doesn't apply to internet communications in transit because internet communications aren't naturally enveloped. One might argue in that context that encrypting them would envelope them. However, there is a statute which requires a warrant to obtain electronic communications in transit, so that statue is, in that context, 4th amendment equivelent and so it doesn't matter anyway.

Having said that, what is the scenario in which you want the 4th amendment to apply where it does not already apply? They need one to search your house. They need one to intercept your email. Where are you worried they'll get access to the cyphertext without a warrant and you'd expect the 4th amendment to protect you in the event that they happen to know how to decrypt it without the key?

RE: The Volokh Conspiracy - Can Encryption create an expectation of privacy