Things just got very interesting on the legal front when it comes to your computer hard drives and the law. Up until now it was just generally assumed, in lieu of a solid legal definition, that if your computers were seized by law enforcement and the hard drives were encrypted in any fashion that you could be compelled to give up your password to decrypt the drives.
Well hang on there sonny boy because the 11th Circuit Court of Appeals just handed down a decision in a 2010 child pornography trial that changes the game – to say the least.
According to the decision anyone who refuses to decrypt their hard drive for law enforcement is covered by the Fifth Amendment.
Now, just in case you aren’t familiar with the Fifth Amendment outside of hokey court television shows it reads something like this: no person shall be compelled in any criminal case to be a witness against himself”.
This all came about as I said a bit ago because of a trial where a man was charged for child pornography but the problem was that all his hard drives were encrypted with TrueCrypt but when he refused to hand over the information needed to decrypt the hard drives he refused; which landed him in jail on a contempt charge from the court.
Here we are two years later and a Appeals Court decision that totally changes the game which is going to really complicate the prosecutions ability to move the case forward.
The court’s describes their reasoning as such:
We hold that the act of Doe’s decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.
To further make matters more confusing there have already been two cases where the defendants were in fact compelled to decrypt their hard drives as the courts in those cases didn’t see this as a Fifth Amendment right.
I have a feeling that this might end up in front of the Supreme Court.