By Joe Palazzolo
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.”
The man, identified in court documents only as John Doe because he has not been charged, was served with a subpoena in April 2011 to appear before a federal grand jury in Florida and produce the unencrypted contents of his laptop hard drives and five external hard drives. Authorities had seized the devices from Doe’s hotel room in October 2010.
Doe refused, invoking his right against self-incrimination. The Justice Department responded by obtaining a court order that granted Doe limited immunity and required him to decrypt the hard drives. He again refused to comply. A federal judge held Doe in contempt of court and ordered him imprisoned. Doe appealed the contempt finding to the 11th Circuit.
According to court documents, Doe’s hard drives were encrypted with a program called “TrueCrypt.” As a result, the Justice Department couldn’t find any files and couldn’t even prove that any existed on hidden portions of the drives.
The Fifth Amendment privilege isn’t triggered when the government merely compels some physical act, like unlocking a safe-deposit box, the court said. But the amendment protects testimony in which a person is forced to use “the contents of his own mind” to state a fact.
“We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files,” wrote Judge Gerald Bard Tjoflat.
Judge Tjoflat, writing for the three-judge panel, said the government was also hobbled because it could only show that the storage space on the drives could hold files that number in the millions — but not that they actually do.
“It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating,” the judge wrote. “Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”
In a similar case, a federal court in Vermont in 2009 ordered a suspect to produce an unencrypted version of a drive on his laptop, but authorities had already seen evidence of child pornography on it.
In January, a federal judge in Colorado ordered a woman charged with bank fraud to decrypt her computer. The Denver-based U.S. Court of Appeals for the 10th Circuit declined to rule on the order before the case was tried.