Can the Government Force Suspects To Decrypt Incriminating Files?
source: http://www.slate.com/articles/technology/future_tense/2012/03/encrypted_files_child_pornogra...
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http://www.slate.com/articles/technology/future_tense/2012/03/encrypt...
In October 2010, law enforcement agents pursuing a child pornography investigation tracked a Florida man suspected of sharing illegal images to a hotel room in California. After obtaining a search warrant, they raided the room, seizing computers and hard drives with nearly five terabytes of total storage capacity. However, they soon hit a roadblock: Portions of the hard drives had been encrypted and were unreadable without a password. The suspect refused to decrypt the drives, and a federal district court in Florida held him in contempt and ordered him incarcerated. However, late last month, a federal appeals court overturned the contempt holding, ruling that the suspect’s refusal was protected under the Fifth Amendment right against self-incrimination.What happens when the government’s desire to access a suspect’s encrypted electronic documents runs up against the Fifth Amendment? As with so many of today’s technology-related constitutional questions, the answers are complex, evolving, and sometimes contradictory. However, across the relatively small set of court rulings that have directly addressed this issue, a few key things stand out.
Courts have consistently held that defendants cannot be forced to divulge passwords. However, and more practically with respect to the end result, a defendant can sometimes be forced to use a decryption password—without divulging it—and then to provide the files in readable form. Whether the government can compel decryption in this manner depends on a legal doctrine called “foregone conclusion” that was first articulated in a 1976 Supreme Court ruling relating to paper documents in a tax fraud case.
Full Story: http://www.slate.com/articles/technology/future_tense/2012/03/encrypted_files_ch...
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