"By Rosenstein’s definition, all of those things should be considered “warrant-proof,” yet he is not advocating that Congress should outlaw people throwing out or destroying papers"
Isn't this considered destruction of evidence and already illegal in the context of a court case? What're the subtleties of this-- does it need to be an already-ongoing case?
> Isn't this considered destruction of evidence and already illegal in the context of a court case?
IANAL; my understanding is that it is only destruction of evidence if you're being investigated (or perhaps have reason to believe that you will be investigated; again, IANAL and this it not legal advice), at which point you ought to know better. Otherwise, the result is ridiculous: any piece of paper I throw out could be evidence in some future, yet unknown, unfathomable to me trial — how am I to know now? If I toss anything, then how could it be used as evidence? I'd need to keep everything to be sure, which is absurd. And, like the article continues: what about conversations? That could show wrong-doing, but I'm not recording it.
The point the author is making is that there have long existed things that could be evidence but that have always been possible to destroy prior to anyone knowing that something is afoot. In that regard, those things are "warrant-proof": by the time you know to issue a warrant, you can't find the item that would incriminate the person. But we're not getting legislation crazy about those. A warrant is permission to take a look, not a guarantee to find what you're looking for.
Frankly, I think that opponents of E2E encryption are greatly overstating things; I think a fair amount of the time, LE will be able to work around it: criminals will set stupid passwords, they won't use the tech at all, they'll be caught by other means (hey, we found printed records, your buddy's drive wasn't encrypted, we found a non-technical smoking gun, like a literal smoking gun).
(Ideally, I'd like to see my data essentially being an extension of my mind that perhaps LE can look at; but I shouldn't be compelled to help them do so. But the current gist I get from politicians is that they'd essentially like to outlaw E2E encryption, and you'd never even get a warrant for your data, because BigCo provider would get it.)
Targeted individuals can already be endpoint hacked in countless ways, which completely nullifies any form of encryption. But that doesn't scale to whole populations.
IANAL but I believe the EFF has argued about whether contempt is appropriate on several different grounds, notably the right against self incrimination in the case of a first party demand to produce a password and the protection against unreasonable search and seizure in the 4th amendement when requiring lavabit to produce their private key for all https communication.
Rather than using the example of evidence that used to exist but no longer exists, I think a better preexisting example is evidence that has been deliberately hidden. After all, encryption is just a method of hiding data from everyone that does not know the key.
If law enforcement knows that the plans for the bank heist exist they still might not know that those plans are currently located in the suspects ex-boyfriends garage. The garage is not warrant proof, the police just don't know where to apply the warrant. The exact same thing is true in the case of encrypted data. Law enforcement needs the key to apply the warrant.
