Can You Be Forced to Decrypt Your Computer?
According to an article posted on CNet, a federal judge in Colorado ruled in January that American citizens can be ordered to decrypt their hard drives to allow police room for more thorough investigations when acting on search warrants for cases that involves things like wire fraud or child pornography. This ruling could truly set precedents in terms of privacy and is encouraging people to argue the Fifth Amendment.
The Fifth Amendment in Question
According to the article, Judge Robert Blackburn ordered a Colorado woman accused of being involved in a mortgage scam to decrypt the hard drive of a laptop computer. She was charged with bank fraud, wire fraud, and money laundering in an attempt to falsify court documents to illegally gain titles to homes near Colorado Springs. Blackburn, ruled that the Fifth Amendment (an amendment that states no one should be compelled in any criminal case to be a witness against himself) does not provide protection from his order.
Blackburn wrote: “I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.”
This is not the first time this issue has been addressed. In 2010, a federal judge in Michigan stated that a man accused of receiving child pornography did not have to relinquish his password in an effort to protect his invocation of his Fifth Amendment privilege. Clearly, these recent events will set a precedent in how legislation interprets Fifth Amendment protection when it comes to encrypted data.
The key to this entire situation is what exactly a password amounts to. Many of the arguments are saying that PGP passphrases are similar to a person holding the key to a safe containing incriminating documents. In this case, a person can be legally compelled to hand over the key. However, the Fifth Amendment shields a person from “compelled testimonial communications,” which protects a person from admitting encryption passwords.
If you have been accused of fraud (including wire fraud), and have questions about what documents or files you are required to hand over to the court, contact a criminal defense lawyer immediately.