5th Amendment self-incrimination and encrypted computer files or electronic storage device

Great Debates
1

The case can be found here.http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

Federal agents executed a search warrant at the defendant’s residence and among the items seized were three desktop computers and three laptops. One laptop in particular, a Toshiba M305, was found in the defendant’s bedroom and was password protected by a PGP program, whereas the other laptops and computers were not password protected. Agents were unsuccessful in their endeavors to decrypt the password. They were successful in viewing the disk encryption screen which included the first name of the defendant in it.

Subsequently, defendant’s ex-husband placed a call to the defendant from a correctional center and the conversation was recorded by federal agents. The substance of the conversation between the two revealed the defendant’s ownership or her use of the laptop, maybe both, and her knowledge of the password to use the laptop.

The agents know the existence and location of the computer’s files, although they do not know of the specific content of any specific documents. However, the defendant’s conversation with her ex-husband reveals the files are likely of evidentiary value, or agents would be interested in finding is on the computer. The government then sought and received an additional search warrant for the Toshiba laptop and a writ pursuant to the All Writs Act, 28 U.S.C section 1651, requiring the defendant to produce the unencrypted contents of the computer.

Ultimately, the trial court concluded, or I should more appropriately say the trial court held A.) Agents lack of knowledge regarding the content of any specific documents on the computer does not result in self-incrimination by the defendant when she surrenders the unencrypted documents, B.) Where, as here, the location of the documents are known to the government, production does not constitute as self-incrimination and C.) The trial court’s order the act of the defendant producing the unencrypted files may not be used against her at trial also remedies any self-incrimination issue.

There isn’t an abundance of case law in regards to these specific factual issues but this ruling seems correct to me, which is to say the reasoning makes sense. Under the facts of this case, and the manner in which the trial court made its ruling, it is a sensible position. Yet, at the same time, something just does not quite feel right in making the defendant produce the potentially incriminating evidence to the state.

2

Assuming the files contain damning evidence, I don’t see much difference between making him tell them what he did, and making him tell them his password.

Apart from that, what if he says he can’t remember it? What if he says it was 20 random letters and numbers, and it was written on a post-it note that he (or his wife) flushed down the toilet when it looked like he would be arrested?

3

I dunno. I assume the fifth amendment doesn’t protect me from a subpeona, even if the stuff subpeonaed would be incriminating (otherwise I imagine Nixon would’ve pled the fifth rather then hand over the watergate tapes). So apparently the court can compel some level of co-operation out of a defendant to produce self-incriminating evidence

It must come up occasionally that a defendant with incriminating documents has them hidden somewhere or in a safe that only he knew the combination for. How are these things dealt with? Can a court compel him to provide enough information so that the cops can go get the records?

4

And yet, there’s a huge difference. The password, in and of itself, is not incriminating.

5

Previous threads on the subject.

6

Yes it is. it tends to prove ownership of the laptop.

7

My password? I forgot it.

8

Myself I think the government should always be 100% on their own when it comes to the analysis of evidence.

I am not a big fan of these sorts of deals where the court admits that a certain act wuld violate the defendant’s rights, and then orders it anyway, and tries to cure the constitutional defect by claiming that they can’t use it for a specific purpose in trial. I don’t see the exception carved out in the constitution. And there is simply no guarantee what prosecutors and police will use it for to develop other evidence that they never would have had the chance to do had the evidence not been unconstitutionally compelled. Such things are privileged under work product.

9

Not when law enforcement already has independent evidence showing ownership and when they do, providing the password is not incriminating.

10

Under these facts, where is the self-incrimination? They know the files are on the computer, they know where they are located on the computer, they already know she uses the laptop, and are already aware she has knowledge of the password to the laptop. How exactly then is presenting her password incriminating?

11

I think the safe concept is probably the best analogy except that without a combination, any safe can be broken into in a matter of time. Then again, given sufficient time, the encryption could be broken, though it may take magnitudes longer to do so. Can a defendant be compelled to provide the combination to a safe? What if they claim they forgot it? What if they claim they forgot the password? Even if they claim they know the password, it doesn’t mean they actually do. Hell, just this morning I thought I knew the password to an account but apparently I didn’t and I had to reset it.

Or maybe take technology out of it. Has there ever been a case where someone kept records using a cipher? Assuming they couldn’t trivially decipher the text, could they compel the person to give up the key? What would they do if they claimed to have forgotten it? Again, sure the key itself doesn’t directly incriminate, but it’s a direct line from it to incrimination.

I think you get into a tricky set of circumstances because ultimately all that is stored is digital data and it depends upon the software to give it meaningful context. They already have direct access to the physical data, just as they would with documents or photographs or any other type of evidence. We naturally have the ability to put photos or documents into context, and other physical evidence can be testified to by an expert to put it into context. What if, instead of using a well known format, I devised my own format to store my data in. In essence, I’ve now become an “expert” in that particular matter of putting the physical evidence into context, haven’t I? I’d essentially be testifying against myself by putting that physical evidence into a useful context that the prosecution could use. Why encryption is generally done in one of a handful of well known algorithms, I’d think that because the key to the encryption is a necessary part of putting it into context, isn’t that an analogous sort of situation?

That is, I think context is just as meaningful as other things a defendant cannot be forced to testify against. A murderer can’t be forced to testify as to the exact act he did or where he may have ditched the weapon. If they find the weapon, they can’t force him to identify it or say that he used it. It is up to the prosecution to provide the context in which the evidence is meaningful, otherwise it’s just a weapon and proves nothing. So why can a defendant be forced to provide context in one situation but not in another?

12

Not necessarily so. the question is what would a jury think? Perhaps a jury would not find exhibit A to be persuasive alone. But Exhibit A and Exhibit B together are persuasive. A court should not be deciding what is or isn’t conclusive evidence for the purposes of admissibility.

13

But if granting the password will not be used as evidence of a crime—which can be stated in advance—then this analogy is no longer suitable.

14

The question is not what would a jury think. The question is whether the 5th Amendment right of “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself", prohibits some action by the government. Specifically, as it relates to this case, the precise question is whether this right is implicated, under the facts of this case.

Based on the facts, and the manner in which the phrase has been construed by the Court, I think it properly construed, then there isn’t any violation of this 5th Amendment right.