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

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Divulge Online IDs, Court Tells Utah Sex Offenders

Again we see a court render a decision without having all the facts. Here the court is under the erroneous belief that, FSOs Internet IDs will only be available to the police for criminal investigations. Reality is, the state forwards these Internet IDs up to the federal level who gives them out to every Tom, Dick and Harry that claims to be a "Social Network" and who uses them to kick FSOs off of their site, which is not a criminal investigation by any means. Where are they lawyers that have done research on all sex offender laws before going into court?

12-7-2010 Utah:

The 10th Circuit upheld a Utah law that forces sex offenders to hand over names they use to send e-mails and instant messages.

A Utah resident, convicted by the military for sex crimes against a minor, filed suit anonymously to contest the law, which requires sex offenders to identify all "Internet identifiers," defined as "any electronic mail, chat, instant messenger, social networking or similar name used for Internet communication."

Utah amended the law, which originally required sex offenders to disclose their passwords, after a federal judge ruled that provision infringed on Doe's First Amendment rights.

The 10th Circuit in Denver, which issued its opinion in October but recently corrected the filing, ruled that law enforcement investigations into sex-related crimes trumped the plaintiff's claims under the First Amendment because of a "compelling interest."

Judge Monroe McKay, writing for the three-judge panel, noted that sex offenders were still allowed a degree of online anonymity since law enforcement limits its use of the information to criminal investigations.

"Although there is a possibility that a government agent would have access to Mr. Doe's identity at the time he was speaking - as, for example, if an undercover sought him out in a chat room in the course of investigating a sex crime - we are not persuaded that this possibility imposes a constitutionally improper burden on speech," McKay said.

The judge also rejected claims that the law constitutes an illegal search and seizure barred by the Fourth Amendment or the ex post facto clause of the Constitution.

"Looking closely at Mr. Doe's argument on this issue, it seems clear that his contentions depend entirely upon his argument that the Utah statute would allow impermissible public disclosure of his internet identifiers, thereby destroying his right to anonymous speech," McKay wrote. "However, because we conclude that Utah's registration statute does not violate the First Amendment, we hold that the effect of the new disclosure requirements is not substantial enough." ..Source.. by MATT REYNOLDS, Courthouse News

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