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.
- Note to self: Encrypt data, memorize password (news.cnet.com)
- What decryption orders mean for the Fifth Amendment (boingboing.net)
- US Appeals Court Upholds Suspect’s Right To Refuse Decryption (it.slashdot.org)