Give Me Your Password!
In the ever-expanding battle between freedom and technology, a new issue is making its way through the courts where courts are trying to apply established principles to modern life. The issue is whether a suspect in a criminal investigation must unlock an encrypted computer so that law enforcement can search the contents of that computer. Law enforcement argue that forcing a suspect to decrypt a computer is analogous to forcing a suspect to open the door to their house when police have a search warrant. Defense attorneys, on the other hand, argue that forcing someone to decrypt a computer is ordering them to provide information to police that only exists in their own head, and therefore violates a suspect’s privilege against self-incrimination under the Fifth Amendment.
Last month, a federal district judge sitting in Colorado ruled in the case of United States v. Fricosu that a Colorado woman must decrypt her laptop computer so prosecutors could search the files on the computer and potentially use evidence from the files against the woman. In his analysis, the judge determined that requiring the defendant to decrypt the computer was necessary to effectuate an existing search warrant. Moreover, the judge determined that, because the government could show by independent evidence that the computer and its files belonged to the defendant, there was nothing to be added to the government’s case by the defendant decrypting the computer. Therefore, according to the Court, the information was not testimonial and did not implicate the Fifth Amendment.
On the other hand, the United States Court of Appeals for the Eleventh Circuit sitting in Atlanta held yesterday in In re Grand Jury Subpoena Dated March 25, 2011 that forcing a suspect to decrypt a computer or produce a decrypted version of the files on the computer is testimonial, and therefore does trigger Fifth Amendment protection. The Court first noted that the crux of the issue is whether the act of production (i.e., the act of decrypting the computer) explicitly or implicitly conveys some statement of fact. If it does, then it is testimonial. According to the Court, “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.” In this case, the Court held that the suspect’s decryption of his computer is testimonial based on two facts: (1) the decryption of the computer was not just a physical act (such as unlocking the door) but that it required the use of the suspect’s mind, and (2) the factual communications associated with the decryption are not foregone conclusions.
The Fifth Amendment to the United States Constitution provides that “no person shall…be compelled in any criminal case to be a witness against himself.” Clearly, decrypting a computer not only provides the government with access to the contents of the computer, but also provides additional facts to the government from the production itself that could incriminate a suspect. Hopefully, future courts that deal with this issue, including the United States Supreme Court, will come to the same conclusion as the Eleventh Circuit and hold that decryption of a computer is constitutionally protected by the Fifth Amendment. Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.
