Federal Appeals Court Says Decryption Court Orders are a Violation of the Fifth Amendment

A federal appeals court has concluded that a Florida man who refused to decrypt several electronic devices and was subsequently imprisoned, had his civil rights violated. This is the first time an appeals courts has ruled in favor of protections for encrypted devices and software. The court ruled in The United States v. Doe that the man's Fifth Amendment Rights were violated.

The FBI seized two laptops and five external hard drives from a man that they were investigating but were unable to access encrypted data they alleged was on the devices via an encryption program called TrueCrypt. When a grand jury ordered the man to produce the unencrypted contents of the drives, he invoked his Fifth Amendment privilege against self-incrimination. The court found him in contempt and sent him to jail.

The Electronic Frontier Foundation (EFF) filed an amicus brief under seal, arguing that the unidentified man had a valid Fifth Amendment privilege against self-incrimination, and the FBI's attempt to force him to decrypt the data was unconstitutional. The 11th U.S. Circuit Court of Appeals agreed, saying that the act of decrypting data is "testimonial" and therefore protected by the Fifth Amendment. After all you are not compelled to testify against yourself in a criminal trial. The court also said that government's "limited offer of immunity" in this case was insufficient to protect his constitutional right, because it did not protect him from the government's use of the data as evidence against him in a prosecution.

"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," 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."

A similar case is being fought in Colorado: a woman named Ramona Fricosu has been ordered by the court to decrypt the contents of a laptop seized as part of an investigation into fraudulent real estate transactions. The EFF says they have filed a friend of the court brief in that case as well, arguing that Fricosu is being forced to become a witness against herself. An appeals court recently rejected her appeal, and she has been ordered to decrypt the information this month.

"As we move into an increasingly digital world, we're seeing more and more questions about how our constitutional rights play out with regards to the technology we use every day," said EFF Staff Attorney Hanni Fakhoury. "This is a case where the appeals court got it right – protecting the 5th Amendment privilege against self-incrimination."

Source: EFF

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