Does 5th Amendment Protect Encryption ?
Here is a case to show the possible complications of technology.
In the case a woman and her husband were arrested and charged with bank fraud. When they were arrested the police served a warrant and seized several laptops. One of them had encrypted files on it. Based on both the names of the files on the laptop and comments by the defendant Ramona Fricosu, they determined it was her laptop and she knew the password.
The authorites served another warrant requesting that she provide a decrypted version of the files, she refused.
The issue being, does providing the decrypted files (and through them the password) violate the 5th amendment rule against self incrimination ?
One judge as ruled that it does not
This is a tough one for me. On the one hand the civil libertarian in me does not want the government to be able to force someone to provide evidence against themselves. On the other hand if the warrant were served and there were locked file cabinets, would it be wrong for the police to require you to unlock the cabinet ?
More importantly, if we adopt an absolute rule that under no circumstances can they require decryption, then how would this impact future law enforcement ? Any drug dealer, white collar criminal, child porn producer, etc could insure they would never be convicted by using a basic encryption system.
Isn’t technology fun ?
9 Responses to “Does 5th Amendment Protect Encryption ?”
I wonder if, “I forgot the password”, is a legal defense? How many password have we all forgot over the years?? too many for me to count…
Very interesting, But there is one situation left out of this discussion.
If the items were in a locked safe or a locked file cabinet and the individual refused to open them, then the law enforcement agencies , with warrent in hand, could break the file cabinet lock or get a safe cracker to open the safe.
So one could argue that law enforcement needs to employ technology experts that could break the encryption and “break into the laptop safe”.
But it an interesting arguement and one that most likely will come before SCOTUS. And given the makeup of the court, one could also expect another split decision since SCOTUS has become just another arm of the liberal or conservative movement in the country, and not one that really basis decisions on the strict interpretation of words written in the constitution.
It states that people can not be forced to witness against themselves. That does not include people hiding evidence of their crime such as a handgun or letters or tax filings. Or in this case, digital files. Giving up a password isn’t in and of itself testifying against yourself, its obstruction of the legal process of evidence gathering necessary to a trial.
This should be a slam dunk for not incriminating ones self. If I remain silent or speak in a now extinct language, they can’t torture me to get me to speak. Of course if they offer me a great deal, I will open up like a clam (after consulting with my high-priced lawyer, their first concession).
They have the woman on tape talking about the laptop so they know she has the password. Since you can be cited for contempt of court for not opening a file cabinet if you have a key then I don’t see why the “key” being a word in this case would prevent you from contempt. Is this really any different than making someone provide a code to a keypad lock?
IMHO, you don’t have to help get yourself nailed.
In my view the judge was wrong. The person should not have to give up password. The corollary is more like not telling where you’ve hid the body. Are you hiding evidence? Sure. Should you be compelled to give it up? No. Can they confiscate and have an expert run rainbow tables against it? Yep.
The government & courts are slowly whittling away at our rights. Don’t let them.
I am more on Barky’s side (I saw this case reported earlier, btw). In my opinion, if she refuses to give up the pass word, the police will have to ‘strong-arm’ the thing. If it were a filing cabinet, they would have to open it by other means. Have you ever lost a key? It’s happened to me before (although, thankfully, not with my filing cabinet).
I am hopeful that SCOTUS (which does on occasion agree) will shoot down this judge’s order 9-0. Meanwhile, since she is being ordered to supply and unencrypted hard drive, why doesn’t she just eliminate the files and take the contempt of court charge? It seems likely that would be the lesser of the two crimes…
Rcoutme..I know you are hopeful that SCOTUS will shoot this down 9-0, but do you expect anything other than 5-4.