WSJ Blog: “[CA5]: Fifth Amendment Protects Suspects from Having to Decrypt Hard Drives”

WSJ Blog: Court: Fifth Amendment Protects Suspects from Having to Decrypt Hard Drives 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 case is In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, No. 11-12268 & 11-15421 (11th Cir. February 23, 2012). The owner of the hard drive was held in civil contempt and imprisoned for refusing to give the information under the limited immunity order he got from the court:

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

. . .

Whether the drives’ contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976) (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”). Thus, we focus on whether Doe’s act of decryption and production would have been testimonial.