In the digital era, access to files and sensitive data—especially that stored in the cloud—means that there’s always eyeballs on our information. As a result, a multitude of different storage techniques to protect our privacy from prying eyes, foreign and domestic, have arisen. Most of these techniques involve a digital variation of the lock and key; except in this case the “key” involved happens to be stored in our minds, not our hands.

A federal court in Colorado is seeking to force a woman, Ramona Fricosu, accused of fraud to decrypt documents stored on her laptop obtained during a raid on her apartment. The Electronic Frontier Foundation has filed an amicus brief with the court asking them to block the government’s request that the woman hand over her password.

“Decrypting the data on the laptop can be, in and of itself, a testimonial act—revealing control over a computer and the files on it,” said EFF Senior Staff Attorney Marcia Hofmann. “Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court.”

When faced with a safe containing precious documents law enforcement has two options: (1) saw open the safe or (2) obtain the key. Obtaining the key usually means either a search warrant to look for and find it or a judge compelling the defendant to turn over the key on pain of contempt. However, in United States juris prudence these powers have never been seen fit to extend to knowledge in a person’s brain, especially if that knowledge is self-incriminating.

I am a staunch advocate of being an “encrypted citizen.” Far too often people forget that computer files and sensitive documents that we would otherwise not wish fallen into other hands are readily visible to anyone with access to our data storage. Looking at the saga that has compelled DropBox to clarify their Terms of Service shows that individuals should be the arbiters of their own privacy. Some of the data that we emit is private and we should stay on top of keeping it that way. In fact, the FTC may help us answer how much privacy cloud-storage outfits must help us with and how much is really entirely in our hands.

Privacy puts the power in our hands and takes it away from would-be attackers

Even law enforcement is heavily limited by the Constitution in how much of our privacy they can trample while seeking evidence of a crime. There are some extremely good reasons for this, among them overzealous prosecution of crimes that sweep up innocent people, damage reputations, and endanger the livelihoods of people.

When I transfer information over the Internet anyone can be watching (not just the United States government) and I neither know their intent nor does my data tell me who is watching or what they watched. Just like putting mail in an envelope, encryption provides some security in an otherwise extremely open communication system. Further, it greatly discourages even governments from simply rifling through my stuff.

However, encrypting data does put a citizen at risk of raising suspicion. The quantity of encrypted information is still somewhat low, although many apps automatically encrypt their data sources in order to protect their users from unauthorized access. The more encryption and privacy-enhancement that we use for ourselves increases the hygiene of our digital-footprint. We should be aware of what we want to remain secret and take steps in order to make it secret on a regular basis.

Being personally empowered does not come without responsibility or consequences

Encrypting your data puts the power back in your hands. Law enforcement and the courts must either commit the resources to attempt to break into your data to violate your privacy or compel you to turn it over. In the end, you can decide to take a stand and not reveal your password and face those consequences; or reveal your password and face those consequences. Without encryption, citizens are essentially powerless in the face of law enforcement confiscation of data, with warrants and subpoena’s the government can reach out to cloud-storage providers—even in some cases across national lines in the case of the PATRIOT ACT—take mobile devices, laptops, etc. and suddenly all of the power is out of the hands of the citizen. They’re entirely at the mercy of devices and corporations that have no stake in our privacy whatsoever.

Encrypted documents, however, have been locked by keys that are something “we know,” not something “we have” (laptops, mobile phones), or something “we are” (fingerprints, DNA) and thus within our power and our power only to reveal or withhold. It provides citizens with bargaining leverage against the overwhelming power governments and law enforcement hold over them. Also, it keeps random law enforcement techs from looking through someone’s wedding photos and sifting through their private lives without some sort of extra oversight from a judge and a public hearing to compel a citizen to give up that key.

This act could be precedent setting for US law and citizen encryption

As is usual for cases such as this, the defendant isn’t in an upstanding position. Fricosu has been charged with bank fraud, wire fraud, and money laundering and has been implicated in falsifying court documents in order to obtain ownership of foreclosed homes. However grim our view of her alleged crimes, the laws should apply equally to her as they would to the rest of us; if she should be readily compelled by the court to reveal this information without some sort of concession so will the rest of us.

That’s what makes this case before the Colorado Federal Court and its relationship with the 5^th Amendment protection against self-incrimination so interesting.