EFF: Forcing Suspects To Decrypt Electronic Information Is UnConstitutional
July 25, 2013 by Sam Rolley
The Electronic Frontier Foundation filed an amicus brief in a Federal court Wednesday in a bid to fight government efforts to violate Americansâ 5th Amendment rights by forcing people under investigation to decrypt their electronic files.
The filing relates to a case in which the FBI is attempting to force Jeremy Feldon, who is under investigation for child pornography, to decrypt data stored on devices and hard drives found in the apartment. After unsuccessfully attempting to access the electronic information for months, agents filed a court order forcing Feldman to provide the government with the decrypted contents of the drives.
EFF argues that forcing the man to decrypt the contents of the devices is a violation of 5th Amendment protections against self-incrimination.
The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” The question here is whether forcing Feldman to decrypt the contents of the computer drives is “testimony” that is protected by the Constitution. The issue ultimately boils down to whether the government is forcing him to reveal the contents of his mind and communicate a fact to the government it doesn’t already know. If so, then the Fifth Amendment applies and the only way the government can compel Feldman to decrypt or “testify” is to offer that person immunity from the testimony.
A magistrate judge initially denied the government’s request, finding the act of decryption was protected by the Fifth Amendment. The court found the government hadn’t sufficiently proven that the drives in question were accessed and controlled by Feldman. That would tell the government something it didn’t necessarily know: that the drives — and their contents — belonged to and were controlled by Feldman. That testimony would incriminate him and therefore triggered the Fifth Amendment privilege.
While Feldon is charged with a disturbing crime, EFF staff attorney Hanni Fakhoury said protecting a suspectâs 5th Amendment rights in the electronic realm is vital as Americans increasingly rely on technology on a daily basis.
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âAt a time where personal data is increasingly generated and stored electronically and online, encryption is a crucial way to safeguard data from prying eyes. Its fast becoming a routine feature in computer operating systems and an integral aspect of exchanging information on the web,â he writes in a post on the EFF website. âBut as we’ve explained to courts before, demanding this common sense data protection shouldn’t come at the expense of our right against self-incrimination. Of course the government should have tools to investigate and prosecute serious crimes. But important constitutional rights can’t be discarded in that pursuit.â