Tag Archives: self-incrimination

A victory for privacy

From the EFF:

A federal appeals court has found a Florida man’s constitutional rights were violated when he was imprisoned for refusing to decrypt data on several devices. This is the first time an appellate court has ruled the 5th Amendment protects against forced decryption – a major victory for constitutional rights in the digital age.

***

The Electronic Frontier Foundation (EFF) filed an amicus brief under seal, arguing that the man had a valid Fifth Amendment privilege against self-incrimination, and that the government’s attempt to force him to decrypt the data was unconstitutional. The 11th U.S. Circuit Court of Appeals agreed, ruling that the act of decrypting data is testimonial and therefore protected by the Fifth Amendment. Furthermore, the government’s limited offer of immunity in this case was insufficient to protect his constitutional right, because it did not extend to the government’s use of the decrypted data as evidence against him in a prosecution.

You can read the full opinion here.

Unfortunately, a second case reached the opposite position. An analysis of the two opinions seems to indicate that police can force a suspect to provide the password if they know what is included in the encrypted data, but not if they don’t.

Prohibition of self-incrimmination

The Fifth Amendment to the US Constitution provides, in part:

… nor shall [any person] be compelled in any criminal case to be a witness against himself, …

So what should happen if a citizen encrypts the hard drive on his computer, the computer is seized by police, and the police seek a court order compelling the citizen to provide the password to the police.  If the password is not written down, the only way to provide the password is to speak it. But the accused has a right to remain silent, based on the Fifth Amendment. That should be the end of the discussion.

Well, such a case is now under consideration by a Federal District Court Judge in Colorado. Could be an interesting ruling and regardless of the ruling it is likely to be appealed. The EFF is on the case.