U.S. Court Extends Fifth Amendment to Encrypted Data

[Andy Chalk]

U.S. Court Extends Fifth Amendment to Encrypted Data

A U.S. Federal Appeal Court has ruled that the imprisonment of a man who refused a grand jury order to decrypt data on his hard drives for an FBI investigation was a violation of his constitutional rights.

An investigation into the unspecified but presumably criminal activities of a Florida man ran into a wall when it turned out that the data on two laptops and five external hard drives seized by the FBI was encrypted with a program called TrueCrypt. Unlike on television, where the boys in the lab can create a GUI in Visual Basic and have the whole thing summarized and uploaded in a 20-second montage, this real-life encryption left the feds stuck. A grand jury thus ordered the man to decrypt the content but he declined, invoking his Fifth Amendment protection against self-incrimination.

His refusal to comply with the order led to a finding of contempt and a trip to the slammer but after some further courtroom tussling, including an amicus filing by the EFF, the 11th U.S. Circuit Court of Appeals declared that the claim is legitimate. Decrypting data is "testimonial," it ruled, and thus protected by the Fifth Amendment.

"The government's attempt to force this man to decrypt his data put him in the Catch-22 the Fifth Amendment was designed to prevent - having to choose between self-incrimination or risking contempt of court," said EFF Senior Staff Attorney Marcia Hofmann. "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 EFF has filed a separate "friend of the court" brief in a similar case in Colorado, where a woman is contesting an order to decrypt data on a laptop seized in an investigation of fraudulent real estate deals. She has been ordered to decrypt the data this month following a rejection of her Fifth Amendment claim by an appeals court.

Source: Electronic Frontier Foundation [https://www.eff.org/press/releases/appeals-court-upholds-constitutional-right-against-forced-decryption]

(photo [http://en.wikipedia.org/wiki/File:Bundesarchiv_Bild_183-2007-0705-502,_Chiffriermaschine_%22Enigma%22.jpg])


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[Terminate421]

"Wow our security is atrocious" - Archer

In all seriousness, I cannot tell if this is a good or bad thing, on one hand, people have a way to hide child porn behind the law (assuming they dont do it already) abd even then I don't know of that applies, on the other hand, we are protected from nazi-state computer scanning.

 

[Redlin5_v1legacy]

I wonder what it is like up here in Canada...

 

[dobahci]

This is a great day for all who value the right to data privacy.

 

[CM156_v1legacy]

Good. I was wondering when they were going to rule on this issue.

One thing I wonder is if they can make you decode something you wrote yourself if you wrote it in code. Because if they can't, it stands to reason they cannot force you to decode your data here.

 

[ciancon]

I seriously doubt i'll ever have to worry about needing something like this but: *downloads TrueCrypt*

 

[Albino Boo]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

 

[CM156_v1legacy]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

 

[Darkmantle]

This is a great day for all who value the right to data privacy.

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

the rule are in place for a reason. The reason we don't let the government have a tremendous amount of power is the fear of tyranny. Lets say that we put in thousands upon thousands of cameras everywhere and all mugging and robberies are suddenly stopped. that would be good right? but what if the government just suddenly decides to make a law against playing tag? all of a sudden, those cameras that brought safety are now being used to oppress the people. I know this is an extreme example, but it can happen.

And as a founding father once said:

"those who sacrifice liberty for security, deserve neither"

Demanding the government have more power to invade peoples privacy, fits under this quote.

 

[Mortuorum]

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

I wish I could say "obvious ruling is obvious", but apparently it isn't. As much as the the founding fathers' intent was blindingly clear to anyone with an ounce of sense, I don't think this one is going to be squashed for good until the Supreme Court gets involved.

 

[CM156_v1legacy]

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation"

That's really what this is about. People's constitutional rights against being forced to incriminate themselves.

But hey: catching criminals is more important than protecting the Constitution and the Bill of Rights. That's why the feds don't need a warrant to search houses.

Oh wait!

I wish I could say "obvious ruling is obvious", but apparently it isn't. As much as the the founding fathers' intent was blindingly clear to anyone with an ounce of sense, I don't think this one is going to be squashed for good until the Supreme Court gets involved.

I'm confused: are you agreeing with me or mocking me?



Either way, I'd love to see SCOTUS rule on this. I'm thinking the same people in Brown V EMA might vote the same way. Scalia, Roberts, and Kennedy are all big on the constitution

 

[Steve the Pocket]

And yet if that data weren't encrypted, refusing to let them access that data (or deleting it before they could get to it, see also Nixon) would still be considered obstruction of justice, if I understand correctly. How does that work?

 

[Aardvark Soup]

I find the FBI's decryption abilities far more contemptible than this guy's refusal to surrender the information.

How is it contemptible that the FBI aren't able to pull of something (cracking TrueCrypt assuming that the key is unknown) nobody on the planet has every succeeded to do yet?

 

[CM156_v1legacy]

And yet if that data weren't encrypted, refusing to let them access that data (or deleting it before they could get to it, see also Nixon) would still be considered obstruction of justice, if I understand correctly. How does that work?

Because, from my understanding, you have to give them the data. You don't have to help them read it, but you have to give it to them. Proving the case is up to them, not you.

Also, one is an active criminal choice. There's a big difference.

 

[dobahci]

And great day for fraudsters, drug dealers, corrupt politicians, the various mobs, hit men, the Ku Klux clan, the Aryan nation and the other terrorist groups out there. So if Enron had just encrypted all their data they could have walked away scot free after defrauding ten of thousands of poeple. Rod Blagojevich should have sent an encrypted email instead of selling Obama's senate seat on the phone and he wouldn't be doing 14 years and the democratic process would have been for sale. But hey data privacy is way more important than protecting the democratic process.

I think there's a potential argument to be made that data privacy could enable a criminal to more easily get away with his criminal activity, but honestly you could've made that argument in a way that didn't make you sound like a Fox News pundit.

Honestly this is an issue that has been argued over in legal theory for ages. It's not new with the information age by any means. Do we protect the rights of the accused or the accusers? If you protect the former, it means that criminals could be harder to put behind bars. If you protect the latter, then it means that a citizen who is wrongly accused would have a more difficult time of securing his innocence. I've always fallen firmly upon the side of the former.

You spoke of the democratic process. What could be more democratic than "innocent until proven guilty"?

 

[Andy Chalk]

But hey data privacy is way more important than protecting the democratic process.

You could make the same argument for warrantless phone taps, searches without any sort of probable cause and pretty much anything else. How far are you willing to go in the name of security? What are you willing to sacrifice?

 

[Bertinan]

Well. I'm all for rights and everything, but there's a limit. This completely screws over any kind of prosecution of other people for on-line crime. You can clear out bank accounts, steal credit card information, hire a hitman, whatever you want now. Just True-crypt your hard drive, and the police will never be able to do a damn thing.