Fifth Amendment Protects The Right Not to Decrypt Hard Drives

As you probably know, the Fifth Amendment to the U.S. Constitution protects a person against being compelled to testify against himself. Historically, this right was directly linked to a desire to prevent torture and forced confessions. However, over the centuries, through the development of American law, it has expanded significantly. Essentially, the right now prevents the government from imposing any penalty on a person for refusing to answer a question whose answer might incriminate him or her.

In addition to testimony in open court, this right extends to questioning by the police, as well. However, as with most constitutional rights, there’s a significant gray area as to when the protections of the Fifth Amendment apply. For example, if a suspect is arrested for drunk driving, is a refusal to submit to a breathalyzer or blood test protected by the Fifth Amendment? After all, it could easily be argued that submitting to those, or similar, tests effectively amounts to self-incrimination, since you’re handing over physical material (a breath or blood sample) that provides the police with information that can incriminate you (your blood alcohol content).

However, courts have repeatedly held that compelling a person to perform a physical act, such as opening a safe deposit box, or turning over a blood sample, does not trigger the Fifth Amendment. For a while, this distinction was pretty clear-cut. However, the arrival of the digital era has confused the issue significantly (who would have thought that a constitution written in 1789 didn’t take computers into account?).

Case in point: a federal appeals court has just ruled that the Fifth Amendment protects a criminal suspect from being compelled to provide the encryption key needed to view files stored on his computer. In this case, the suspect’s computer and some external hard drives were seized as part of a child pornography investigation. When investigators examined the contents of these storage devices, they found that some of the material was encrypted, and could not be viewed. This led to some wrangling in the trial court over whether or not the defendant could be compelled to disclose the encryption keys.

Ultimately, the 11^th Circuit Court of Appeals ruled (.PDF) that the act of disclosing the encryption key is a form of testimony, because it requires the defendant to disclose the contents of his mind. This is the important distinction between a testimonial and non-testimonial act: whether or not the contents of the defendant’s mind are being divulged. So, providing an encryption password is testimonial, and therefore protected by the Fifth Amendment.

On the other hand, if the evidence the government sought existed on paper, and was locked in a file cabinet, requiring the owner of the file cabinet to physically open the cabinet and give the government access to the evidence would not be testimonial, and a court could compel a person to do it without raising a Fifth Amendment issue.

In this case, however, if the defendant were to disclose the decryption password, he would effectively be admitting that he knew the password, had access to the encrypted files and, presumably, was aware of their contents. If the files did, in fact, contain illegal material, it’s hard to argue that he would not have incriminated himself by providing that information.

I’ll be honest: I’m conflicted about the result in this particular case. I almost always come down on the side of strengthening the protections laid out in the bill of rights. However, I also strongly believe that we should lock up child pornographers, and the people who view such material, and throw away the key. And because it seems that most of this material is distributed online, rather than in physical form, it is becoming ever more important for police to have the resources necessary to deal with crimes that are committed primarily on the Internet.

This includes the ability to quickly and easily obtain encrypted files. And, let’s be perfectly honest: the fact that this guy made such a big deal about refusing to decrypt the files strongly suggests that he had something to hide. Nonetheless, we operate under a principle that all criminal defendants, no matter how deplorable their alleged crimes, and how likely they are to be guilty, are presumed innocent until the government has proven their guilt beyond a reasonable doubt.

And it would completely defeat the purpose of the 5^th Amendment if invoking the rights it afforded could legally be used to infer a defendant’s guilt. So, what’s the solution to this dilemma? I honestly don’t know. Maybe there isn’t one, and this is simply the price we pay for living in a free society. The possibility of someone who is almost certain to be in possession of child pornography walking free makes my stomach turn, and it’s certainly a high price to pay for a strict adherence to the principles of our constitution. But, in the end, I think it’s a fair one.

The fact is, in a society based on the notion that everybody is innocent until proven guilty, and when we have laws designed to prevent the government from invading every aspect of our lives, some guilty people are bound to go free.

Personally, I think it’s far better for a guilty person to go free than for an innocent person to be punished, and that applying the protections laid out in the Bill of Rights consistently is the only way to ensure that they serve their intended purpose of protecting innocent people.