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The U.S. congress has a draft for a bill that would require companies to fetch information from a device when requested by a court. A consequence of this is that many types of security technology become illegal for any company subject to U.S. jurisdiction.

The draft says (sorry if there are any transcription errors)

(3)(A)(2) Scope or REQUIREMENT - A covered entity that receives a court order referred to in paragraph (1)(A) shall be responsible only for providing data in an intelligible format if such data has been made unintelligible by a feature, product, or service owned, controlled, created, or provided, by the covered entity or by a third party on behalf of the covered entity.

For something to be made unintelligible, it has to be intelligible to start with. Therefore, would the court or government have to proof that it was in fact intelligible to start with to get the data?

For example, could the company claim that the user could have enciphered their document with the ROT13 protocol before it entered the device, and not give them any data until the court proves that the user did not?

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The government would have to argue that there is intelligible data available, which was made unintelligible by the party's feature/product/service. This argument would have to meet the standard of proof required for the court order, which is usually much lower than "beyond a reasonable doubt."

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