Court: Fifth Amendment Protects Suspects from Having to Decrypt Hard Drives

This issue may end up in the US Supreme court.

2-25-2012 11th Circuit:

In a ruling that could have broad ramifications for law enforcement, a federal appeals court has ruled that a man under investigation for child pornography isn’t required to unlock his computer hard drives for the federal government, because that act would amount to the man offering testimony against himself.

The ruling Thursday appears to be the first by a federal appeals court to find that a person can’t be forced to turn over encyption codes or passwords in a criminal investigation, in light of the Fifth Amendment, which holds that no one “shall be compelled in any criminal case to be a witness against himself.”

The Atlanta-based U.S. Court of Appeals of the 11th Circuit ruled that “the Fifth Amendment protects [the man’s] refusal to decrypt and produce the contents of the media devices,” which the government believes contain child pornography.

The ruling could handcuff federal investigators, as more data are secured behind sophisticated encryption software. A Justice Department spokeswoman did not immediately respond to a request for comment.

Two lower federal courts in Colorado and Vermont have ruled that the government may compel suspects to decrypt storage devices or computers in federal criminal investigations, in certain circumstances. In the Colorado case, federal prosecutors argued that “public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these.” ..For the remainder of this story: by Joe Palazzolo