While we wait for the issue of compelled decryption to reach the Supreme Court, we would do well to look at a representative sampling of lower court decisions on this issue as well as an “out of the safe and lock box” argument we should be making in the meantime.
Rulings that Decryption is Privileged
1.) In U.S. v. Doe (2012), the Eleventh Circuit issued the first published appellate decision in the United States, in federal or state court, to hold that decryption is a privileged testimonial act.
The government seized hard drives it believed contained child pornography. Some were encrypted and the suspect refused to decrypt them — invoking the Fifth Amendment. Using the combination / key dichotomy discussed, the court held:
“Requiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because both demand the use of the contents of the mind, and the production is accompanied by the implied factual statements [his knowledge of the existence and location of potentially incriminating files; his possession, control and access to them] that could prove to be incriminatory.”
The court also noted that the government could not identify with “reasonable particularity” the existence of certain files. In Hubbell, the Supreme Court held the suspect could not be compelled to disclose the existence of incriminating documents which the Government was unable to describe with “reasonable particularity” because such disclosure was, in effect, a statement the documents existed and where.
2.) In Commonwealth v. Gelfgatt (2012), a Massachusetts superior court held that forcing someone to decrypt his computer is tantamount to forcing someone to “explain” information — not simply produce evidence — which violated the defendant’s Fifth Amendment and state constitutional right.
The Judge compared encrypted computer files to documents that included several coded papers retrieved from a defendant’s personal effects pursuant to warrant. The court reasoned that even if the defendant acknowledged in an interview that the symbols had meaning the defendant could not be compelled to decode them.
This case was argued before the state’s highest court from which a decision is still pending.
Rulings that Decryption is Not Privileged
1.) In May 2013, a federal magistrate in Wisconsin reversed himself – first finding that child pornography suspect Feldman could not be compelled to decrypt hard drives seized pursuant to a warrant and then finding he could.
The magistrate said his initial ruling was because FBI agents couldn’t establish to his satisfaction that Feldman controlled the computer. Subsequently, agents were able to decrypt a portion of the files which constituted child pornography and personal information on the computer that established Feldman’s control over the seized hard drives.
2.) In U.S. v. Friscou (2012), a federal district court judge ordered a Colorado defendant accused of bank fraud to decrypt files on a computer seized pursuant to a warrant. The judge said there was plenty of evidence — a jailhouse recording of the defendant — that the laptop might contain information the authorities were seeking.
The prosecution had argued that if the court did not rule against Friscou it would amount to:
“[A] concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”
The court precluded the government “from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution.”
Until the Split is Resolved
I urge police and prosecutors to use an analysis and argument published just this year to try and persuade courts to rule in their favor when it comes to decrypting computers.
In The Fifth Amendment, Encryption, and the Forgotten State Interest http://www.uclalawreview.org/pdf/discourse/61-19.pdf, author Dan Terzian argues that decryption and computer passwords don’t fit the oversimplified safe-combination / lockbox-key dichotomy used by the Eleventh Circuit.
Instead, this technologically advanced and evolving question is more aptly decided by balancing government and individual interests within the Amendment’s doctrinal framework.
Such balancing has been upheld in numerous other Fourth and Fifth Amendment court decisions that are discussed in Terzian’s article. This balancing has previously influenced the Supreme Court to permit compulsion where doing otherwise would make a crime “difficult … [or] almost impossible to prosecute.”
Terzian argues this is exactly what will happen as encryption becomes commonplace. The successful prosecutor made this argument in Friscoum, noting that the cases in which encryption is most likely to be involved are some of our most serious and difficult to prosecute crimes.
With safe combinations, the balance tips in favor of protecting the individual against government compulsion because the government can crack the safe on its own. Not so with the current technology of encryption and passwords.
Once a warrant has been obtained — describing the evidence sought as particularly as possible — police need to provide prosecutors with the facts necessary to argue:
• There are no other means for reasonably obtaining the encrypted evidence other than compelled decryption (it is technologically impossible, prohibitively expensive, or an attempt could destroy the evidence)
• The encrypted evidence is necessary to the case
• The government has a compelling interest in prosecuting this and other cases like it (what harm would result in this and other cases if an encryption license were granted by the court)
Prosecutors should also consider conceding that they will not use the production of the decrypted files as evidence against the defendant.
We need to get this approach to compelled decryption out of an academic article and into the lower court decisions as this issue advances to the Supreme Court.