US Appeals Court Upholds Suspect's Right To Refuse Decryption

An anonymous reader writes "The U.S. 11th Circuit Court of Appeals has found that forcing a suspect to decrypt his hard drive when the government did not already know what it contained would violate his 5th Amendment rights. According to Orin Kerr of the Volohk Conspiracy, 'the court's analysis (PDF) isn't inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.'"

Comments

Re:Only when they don't already know?

[Anonymous Coward]

Yes. If the government knows your have child porn on your computer, then they can get a warrant to force decryption.

It's EXACTLY the same thing if they know you have a dead body in your garage they can get a warrant to force you to unlock the garage.

Really? I mean really?

[Xylaan]

The first link is to a completely different case. Similar story, except that one ruled that the defendant must decrypt their laptop and was heard by the 2nd Circuit. The second link refers to the 11lth Circuit case.

Re:Only when they don't already know?

[Kjella]

They can't just "say it". The other case was quite exceptional, the suspect did voluntarily show the decrypted disc to the customs officer, the customs officer found kiddie porn but as the laptop was powered down it wouldn't open again without a password. So they had proof he could access it, testimony that they'd actually observed it and a chain of evidence that the contents had not changed since then. That's a whole different level of knowing than just "knowing" they're involved in something illegal.

Re:Did the submitter not read the article...?

[Anonymous Coward]

I think they just linked the articles confusingly.
The first link is the 2nd Circuit Court of Appeals on Fricosu, which is a different case still ongoing.
The second link is the 11th Circuit Court of Appeals for another case where they now decided that forcing him to decrypt his hard drive would violate his 5th Amendment rights.

Go Truecrypt!!!!!

[Pepebuho]

From the Opinion:
"But random characters are not files; because the TrueCrypt program displays random characters if there are files and if there is empty space, we simply do not know what, if anything, was hidden based on the facts before us. It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating. In short, the Government physically possesses the media devices, but it does not know what, if anything, is held on the encrypted drives."

Re:Only when they don't already know?

[Kjella]

Actually this is a double smackdown. They hold that

1) The act of decrypting would be testimonial in proving your control over the encrypted container.
2) Even if the decryption wasn't testimonial, compelling you to produce a part of the chain of evidence is also prohibited by the 5th amendment.

This is pretty much a full victory that your encrypted contents are immune from warrants, expect new keylogger laws shortly though... And it still needs to stand in the US Supreme Court before it applies to the whole US, but the ruling seems sound.

Re:What if you honestly forgot?

[Hatta]

Wrong. "civil" or "criminal" refers to the type of contempt, not the type of court case during which the contempt occured. Civil contempt is coercive (forward looking), criminal contempt is punative (for something that already occured). Coercing someone to produce evidence is exactly the kind of thing civil contempt is used for.

Under civil contempt the victim is said to "hold the keys to his own cage", which is used as an excuse to deprive him of any sort of due process whatsoever. It's barbaric and should be abolished.

Re:Only when they don't already know?

[hairyfeet]

You are so close to where the true scariness is about this yet so far. What is truly scary is that with an obstruction charge you have now a situation where you have to prove a negative or get life without a trial! Is there a single file anywhere in your possession you no longer know the password for? All it takes is for some government goon to say "Give us the password" and when you say "I don't remember it" BAM, you get to rot because you have no way of "proving" what you actually do and don't remember.

Got a copy of truecrypt somewhere? Even if you don't have it installed some goon can walk up to a judge and say 'Here is a copy of truecrypt we found on one of his discs. Since this software is used to hide data we believe the suspect has used it to hide illegal activities" and then when you tell the judge 'I don't have a hidden volume" thanks to obstruction you can rot because again how do you "prove" what knowledge is or isn't in your brain? Hell I have NO doubt that I have encrypted files I don't know the passwords to simply because i've played with everything from .RAR's built in encryption to truecrypt to just about every thing ever highlighted on /. and since I was just throwing random crap like text and pictures in them before trying out password crackers so needless to say I didn't give a shit enough to write the codes down and since i have 3Tb worth of space I've not been the greatest at hunting for and deleting old crap.

In the end what makes this so scary is with this they have the perfect catch 22, either you produce some evidence they can stick you with or if you say you can't remember unless you can somehow PROVE that you don't remember, which as pointed out is pretty much impossible, well they can then throw you in a hole and forget where the key is. With crimes IRL they can simply go around you with you cooperating. They can cut open the safe, kick open the door, etc, but with this unless you are using some sort of government approved crypto where the state has a master key you are screwed.