[mattnewton]

Sure, you can also destroy evidence! This is already a crime we deal with. Encrypting and throwing away the key is deleting with more steps - in fact it is often an implementation detail of deletion in some software systems. It is already illegal, and already something our justice system deals with. No power grabs necessary.

[AnthonyMouse]

> Sure, you can also destroy evidence! This is already a crime we deal with.

That is just assuming the premise. Destruction of evidence is a crime, but destruction of private lawful communications is not. The FBI has no right to a married couple's sexting.

The usual case for destruction of evidence is one of two things. Either they produce some emails where you're conspiring to destroy evidence, or that they catch you in the act, seize the evidence you were destroying, and then use it to prove that what you were destroying was evidence.

Finding someone with a bucket full of confetti or an encrypted drive but no key isn't evidence of a crime, and it's unreasonable to be able to put anybody in jail just because they shredded their old credit card statements or can't remember the password for an old device that has been in a closet for three years.

[mattnewton]

The fact that the FBI has no right to a couple sexting without a warrant is exactly why encryption is fine. When they present evidence to a judge that there is something they need in those conversations to prove a crime, and get a warrant, then it becomes evidence in a criminal investigation.

IANAL or law enforcement, but I don’t see the problem with this system.

[AnthonyMouse]

The problem is that you may not be able to decrypt it.

It's like finding some footage that you drove into and out of a place where there was a murdered body during the same time that the body went missing. That's circumstantial evidence you might have moved it, and it might convince a judge to issue a warrant and have the police search your residence for evidence. But if they can't find anything it's not reasonable to charge you with destruction of evidence for not producing the body, because they haven't proved beyond a reasonable doubt that you could have.

People forget passwords all the time. Sometimes the police find the phone of somebody else who left it in your car and you didn't even realize it was there, and now you think they planted it and they think you won't unlock it, and the person who knows their phone is missing would rather see you in jail than claim the phone and end up there themselves. Higher level paranoia security systems can make unused space indistinguishable from encrypted data, or send cover traffic when there is no real traffic, and there is no way to decrypt it because it's not actually encrypted data to begin with.

There is no way to prove you can't decrypt something which means it's unreasonable to demand that somebody do it when they may not be able to.

[mattnewton]

Planting evidence, losing keys, forgetting where you buried something or being falsely accused of burying something are not new. Dealing with these gray areas is the job of the judge and jury, and it isn’t a technical problem, or a new one.