Landmark decision allows child-porn suspect to plead Fifth in password case

Landmark decision allows child-porn suspect to plead Fifth in password case

Summary: A federal appeals court has ruled that a suspect in a child pornography case is protected under the Fifth Amendment from disclosing a password that would decrypt his computer files.

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TOPICS: CXO, Hardware
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In what will likely become a landmark case for the digital age, a federal appeals court has ruled that a suspect in a child pornography case is protected under the Fifth Amendment from disclosing a password that would decrypt his computer files.

It is the first time a suspect has been granted Fifth Amendment protection in a case involving a password used to encrypt computer hard drives.

The Fifth Amendment protects against self-incrimination.

The U.S. Court of Appeals of the 11th Circuit, which is based in Atlanta, ruled that "the Fifth Amendment protects [the man's] refusal to decrypt and produce the contents of the media devices. The suspect is only referred to as John Doe in court documents.

The court found that by revealing the password the man would be disclosing something he knew, i.e. testifying against himself, as opposed to producing something that he had, say a key to a safe, that could be considered evidence.

"The government's attempt to force this man to decrypt his data put him in the Catch-22 the 5th Amendment was designed to prevent - having to choose between self-incrimination or risking contempt of court," Marcia Hofmann, senior staff attorney for the Electronic Frontier Foundation said on the group's Web site. "We're pleased the appeals court recognized the important constitutional issues at stake here, and we hope this ruling will discourage the government from using abusive grand jury subpoenas to try to expose data people choose to protect with encryption. "

The court wrote: "We hold that Doe's decryption and production of the hard drives' contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government's use of the drives' contents."

The ruling in the case, which began in Santa Rosa County, Fla., and ended with an arrest in California, goes against two lower court rulings in similar cases - one in Denver and the other in Vermont. Neither court would allow the Fifth Amendment defense. In both cases, police had some knowledge of what they might find on computer hard drives and used a "forgone conclusion" argument.

The woman in the Colorado case is scheduled to turn over a password on Tuesday although her lawyer says she does not know or cannot remember it.

But in the 11th Circuit case, it was clear that investigators had no knowledge of the contents of two laptops and five hard drives and, therefore, could not claim a forgone conclusion as to the contents of millions of encrypted files.

The court concluded that the suspect proved the three conditions that fall within the scope of the Fifth Amendment: compulsion, a testimonial communication or act, and incrimination.

Topics: CXO, Hardware

About

John Fontana is a journalist focusing in identity, privacy and security issues. Currently, he is the Identity Evangelist for cloud identity security vendor Ping Identity, where he blogs about relevant issues related to digital identity.

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19 comments
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  • Looks bad but..

    These are important cases that deserve serious consideration (and coverage). Better coverage is here:

    http://arstechnica.com/tech-policy/news/2012/02/appeals-court-fifth-amendment-protections-can-apply-to-encrypted-hard-drives.ars
    D.T.Long
    • Thanks

      That clarifies things a lot. I had the Colorado and Florida cases confused.
      John L. Ries
  • congratulations zdnet...

    I haven't visited your site in probably six months and I remember why.

    Your talkback system STILL sucks.

    since you changed it over a year ago.... it has sucked.

    I originally posted a polite, thought invoking post. much like many times in the past... as soon as I clicked "add your opinion"... it went to /dev/null

    maybe because I mentioned R1AA or MP@@ ? did SOP@ get passed and I just don't know it?

    Kudos zdnet, maybe I'll visit your site in 2013 and see if your code is better than a college level project.
    UrNotPayingAttention
    • I Haven't Been Banned

      My Talkbacks routinely are critical of those same issues. I'm guessing it was a technical glitch. Had the same problem and same accusation against AOL financial news. Turned out that I just wasn't waiting long enough for my reply to come on the screen. Your screen going to /dev/null argues something technical, not impatience, and I hope you get it resolved.
      nikacat
  • I can see the self-incrimination, and can agree with it in refernce to law

    But I think the lawyer stopped short of her statement; it sounds incomplete

    [i]We???re pleased the appeals court recognized the important constitutional issues at stake here, and we hope this ruling will discourage the government from using abusive grand jury subpoenas to try to expose data people choose to protect with encryption, no matter how many children or people may be hurt, abused, or killed from it in the future[/i]

    Now it sounds much more accurate.
    John Zern
    • it's hard to argue though...

      that the Judge didn't make the right decision, and an important precedent was set.

      Otherwise, what's next... the R1AA and MP@@ (along with lobby bought legislation) demanding passwords to encrypted files on your personal computer?

      Not to mention, this guy is still: innocent until proven guilty. There are several elementary teachers that can attest to that.

      When police, prosecutors, govt., etc want inside a safe... they may not ask for the combination. Odds are they will hire someone to get into it. Same should apply here.

      And, I say that as a Father of a 10 year old daughter.
      UrNotPayingAttention
      • I'm not so sure

        If all that needs to be done to hide the evidence is to encrypt the files, then it is likely to make it very hard to prove someone guilty of certain crimes. I think the district court got it right and there's still the Fourth Amendment standard of probable cause attested under "oath or affirmation" to prevent fishing expeditions.

        Edit: I had the Colorado and Florida cases confused. I agree that in the absence of probable cause, an owner of encrypted files should not be required to decrypt them or assist others in doing so.

        Either way, I think the case is properly covered by the Fourth Amendment, not the Fifth.
        John L. Ries
  • Pedophiles have rights?

    He's a pedophile, he shouldnt have any rights..
    Force him to decrypt that Hard drive, and give those children some justice!
    If he refuses just keep him in contempt of court and lock his @ss in jail until he cooperates. Think of the Children! Accused Pedophiles shouldn't have rights of any kind!
    JustZaphod
    • How do you know someone is a pedophile?

      The usual procedure is to put him on trial. Until then, he's presumed innocent until proven guilty, just like any other criminal suspect.

      But everyone has rights... just not necessarily the ones the ACLU says he has.

      Reply to the reply:

      Believe the police all you want, but a fair trial is a fundamental right and an accusation is not proof. Police officers sometimes make mistakes and not all are completely honest.
      John L. Ries
      • The authorities saw the evidence before the laptop closed

        The authorities have already confirmed the evidence on his computer, but when they closed his laptop his drive encrypted. I personally believe the authorities in these matters. Since the police witnessed the evidence, they have probable cause. He lost his rights when he downloaded those images of those sweet innocent children! Send him to prison for the rest of his life!
        JustZaphod
      • say wha?

        @Just

        Oh is that why it says "it was clear that investigators had no knowledge of the contents of two laptops and five hard drives"??
        wendellgee2
    • you have to be trolling...

      but I'll bite. Because you're attempt at trolling is pre-amateur hour.

      1) he's not convicted, this country still maintains "innocent until proven guilty". Nancy Grace much?

      2) Several elementary teachers and other adults can attest to the fact that... just because illegal images ended up on a computer, they weren't necessarily the ones who were responsible.

      3) He certainly does deserve rights, as do any American citizen. Who are you to say different? one virus on your computer, and you very well could be facing the same judgement you haphazardly want to impose on him.

      4) the right of the 5th Amendment he is entitled to... not only protects from him from the charges in question; but also charges not drawn up.

      It would be very ironic if he supplied the passcode, and did not in fact have any illegal images. But, instead, had documentation proving tax evasion, or other crime to which he would have incriminated himself.

      Ever think of that? No, because Nancy Grace does get paid to think.
      UrNotPayingAttention
      • Nancy Grace gets paid to think?

        lol, that's news to me.
        ScorpioBlack
  • Break in

    I am sure they will just break in. Just like anything locked up that they need to check out.
    MoeFugger
  • The right decision isn't always the easy decision...

    Had this decision gone the other way, the fourth and fifth amemendments to our constitution would have been declared null and void in the digital age. What someone is accused of simply cannot be a determining factor in what rights they are afforded. If the guy is a pedo, I hope he gets locked away for a very long time and gets the crap beat out of him every single day he's locked up, then shanked to death the day he's supposed to be released. The burden is still on law enforcement to prove his guilt in a court of law within the confines of his rights as an accused citizen.
    jasonp@...
  • hacking

    Now time to hack some files. May take a few years !
    ShqTth
  • Watch we might get more than we bargained for.....

    Want to bet the government will start to pressure the companies providing these protections to include a "super-user" password or a back door into the system and then we'll have a bunch of hackers (other than the government) getting access to the contents of the drives. Can we say MAJOR SECURITY BREACH, not just personal but other levels as well, like corporate, and all levels of government. Criminals will have a field day with all of the accessible info - WIKI-LEAKS anyone.
    Byterat
    • Which is what is so great about open source.

      how can the Government enforce an open source community, i.e. American Citizens, to allow for an avenue to be more strictly governed and controlled?

      They can't, because there is no Corporation behind many open source projects.

      Ah, thank God for FOSS, indeed!
      UrNotPayingAttention
      • Billed for wasting the Government's time.

        "[i]how can the Government enforce an open source community, ...[/i]"

        They probe your PC and if they can't get in, you receive a visit from the men in the black SUVs.
        They leave you a nice little $10K bill, for wasting the Government's time.
        lehnerus2000