Fifth Amendment for Encrypted Hard Drives

Here's the followup post I promised about the story of the 11th Circuit Appeals Court upholding the Fifth Amendment as protection preventing forcing people to decrypt their hard drives. I actually started reading the source link at the article, which is the actual court document describing the court's ruling. It's really fascinating, and I was instantly absorbed. That's something I never thought I'd say about reading a legal document.

In class on Thursday, the control group brought up the case I talked about in my first post relating to the Fifth Amendment and encrypted hard drives, as well as the article sparking this followup post. I got so excited that they were bringing these two articles up that I immediately shared my biased opinion to the entire class about the matter. I think I may have ruined the exercise a bit, because the class definitely seemed poisoned my way, for the prosecuting half was definitely weak in their arguments. I couldn't even participate in the prosecuting half, to which I was assigned, because I had already made up my mind.

For those new to the matter at hand, let's talk about the problem. With the rise of technology in society, more and more cases are being brought to court where a evidence is suspected to be found on the encrypted hard drive of the defendant. With physical evidence, such as something in a safe or in someone's house, the court can issue warrants to search the house or break into the safe. An encrypted hard drive is another story. If the right encryption is used the right way, it can be virtually impossible to break the encryption and recover the data on the drive without the defendant's key. That key is usually in the form of a password.

This is how physical evidence and digital evidence differs. With physical evidence, the court can simply recover it with or without the express permission of the defendant, such as cracking a safe or breaking down the front door. With a properly encrypted hard drive, it could be impossible without the defendant's cooperation. Because of this, the prosecution wants to subpoena the defendant to cooperate or be held in contempt of the court.

The defendant's argument usually relies on the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The bolded phrase, stating that the defendant shall not be compelled to be a witness against themselves, is the key part. The court is asking the defendant to produce the unencrypted contents of the defendant's hard drive. However, the very act of turning what is encrypted to unencrypted implies ownership of the data on the hard drive. It therefore implies guilt is condemning evidence is to be found on the drive, and if the defendant is proven guilty solely or largely based on the unencrypted contents, then their producing the evidence is quite self-incriminating.

That's precisely what the lengthy court document upholding the defendant's right not to produce the unencrypted contents argues. I agree with their decision. The case in particular concerns child pornography, something so terribly the guilty should have millstone's strung about their necks and tossed into the sea. However, the principle of upholding the Fifth, not forcing self-incrimination is important. Imagine a corrupt government planting an encrypted hard rive in someone's home, and then throwing them in jail for contempt of the court when they failed to produce the encrypted contents. Or a person producing an unencrypted hard drive only to find documents placed their by someone else while the drive was unlocked, but a jury deciding the implicit ownership of the files by the defendant and pronouncing guilt.  Our Founding Fathers designed our system to let a few guilty men go free rather than condemn the innocent.