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Federal Magistrate Rules That Fifth Amendment Applies To Encryption Keys
Virtucon writes "U.S. Magistrate William Callahan Jr. of Wisconsin has ruled in favor of the accused in that he should not have to decrypt his storage device. The U.S. Government had sought to compel Feldman to provide his password to obtain access to the data. Presumably the FBI has had no success in getting the data and had sought to have the judge compel Feldman to provide the decrypted contents of what they had seized. The Judge ruled (PDF): 'This is a close call, but I conclude that Feldman's act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be
tantamount to telling the government something it does not already know with "reasonably particularity" — namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.'"
If the government has reasonable suspicion that you have illicit data, they can still compel you to decrypt it.
This is a close call, but I conclude that Feldman's act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with "reasonably particularity"
I'm guessing this is the trick. The government doesn't know there is evidence on the storage device. It sounds like they are making the argument that compelling a password for discovery purposes is a violation, but providing one to give them what they know you have is not. At least, that's what it seems like they are saying to me.
It came from the linked article that references a rejected appeal in a bank fraud case concerning turning over an encryption key.
It's a wink-wink that they have to add "possession of child pornography" to the charges also in order to compel the keys.
Just last year, for example, a federal appeals court rejected an appeal from a bank-fraud defendant who has been ordered to decrypt her laptop so its contents could be used in her criminal case. The issue was later mooted for defendant Romano Fricosu as a co-defendant eventually supplied a password.
Contrary to the Wisconsin child pornography case, however, the Fricosu matter was distinguishable because the authorities had evidence that her hard drive might contain evidence against her, meaning the court felt her Fifth Amendment rights were not at issue. That’s because the authorities had recorded a jailhouse conversation between her and a co-defendant, in which the laptop’s contents were discussed
Not quite right.
The government is asking for information which would demonstrate that he had the capability to access the information in a device. Such an admission would be useful to the prosecution which must account for the custodial chain of the device and the data within it.
An example of a situation where you might require this sort of defense:
1. You buy a computer from Bob on Craigslist. You stick it in your garage to work on later.
2. Bob is busted for something, and when questioned about the computer, says he sold it to you.
3. The police arrive at your house, and with a warrant seize the computer from your garage.
4. It turns out that 'Bob' was selling CP or something similarly illegal. The prosecutor decides that YOU purchased the computer/HDD as part of a purchase of CP from Bob.
5. You claim that you have no idea what is on the machine, and the prosecutor demands that you provide the encryption key to decrypt the files for search.
At this point, if you were to provide the encryption keys, it would demonstrate that you DID have the ability to access the files on the computer, this would be providing evidence to the prosecution that you were part of the chain of custody.
In the case where the person WAS compelled to turn over the encryption key, the prosecution already had evidence that the person already could access the encrypted device/file. Therefore, by turning over the encryption key, the person was not providing any evidence that the prosecution did not already have.
So if in the example I provide above, you had made a statement that "Hey, Bob sold me a computer, and you wouldn't believe the nasty stuff he had on it in an encrypted file." That would mean that you could not plead the 5th as it would already be a fact that you could access the encrypted file, so providing the keys wouldn't be giving any evidence to the prosecution.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
Basically, it is a crime to withhold evidence that the government knows you have. But you can't be compelled to provide evidence against yourself that the government doesn't know you have.
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