Internet Law

Fifth Amendment Protects Child Porn Suspect Who Refuses to Unlock Hard Drive, 11th Circuit Rules

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A suspect in a child pornography investigation may assert his Fifth Amendment rights in refusing to unlock encrypted hard drives, a federal appeals court has ruled.

The decision by the Atlanta-based 11th U.S. Circuit Court of Appeals is apparently the first by a federal appeals court to protect a person from giving up passwords or encryption codes in a criminal investigation, the Wall Street Journal Law Blog reports. According to the Law Blog, “The ruling could handcuff federal investigators, as more data are secured behind sophisticated encryption software.”

The 11th Circuit found that decrypting and producing the hard drives would be testimonial, rather than a physical act such as turning over the key to a strongbox. “We conclude that the decryption and production would be tantamount to testimony by [the John Doe suspect] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files,” the opinion said.

Two lower courts in Vermont and Colorado have issued contrary rulings, the Law Blog says. The Denver-based 10th U.S. Circuit Court of Appeals declined to rule in an interlocutory appeal in the Colorado case. In the Vermont case, the government had already seen evidence of child pornography on the suspect’s laptop.

In the 11th Circuit case, however, government investigators did not know what, if anything, was held on the suspect’s encrypted drives. As a result, production can’t be compelled under the “foregone conclusion” doctrine, the appellate opinion (PDF) said.

How Appealing and the Volokh Conspiracy also noted the decision.

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