EFF: Forcing Suspects To Decrypt Electronic Information Is UnConstitutional

Data encryption

The Electronic Frontier Foundation filed an amicus brief in a Federal court Wednesday in a bid to fight government efforts to violate Americans’ 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.

From EFF:

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 suspect’s 5th Amendment rights in the electronic realm is vital as Americans increasingly rely on technology on a daily basis.

Note from the Editor: Under the Obama Administration, the NSA, the IRS, and the State and Justice departments are blatantly stepping on Americans’ privacy—and these are just the breaches we’re aware of. I’ve arranged for readers to get a free copy of The Ultimate Privacy Guide so you can be protected from any form of surveillance by anyone—government, corporate or criminal. Click here for your free copy.

“At 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,” he writes in a post on the EFF website. “But 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.”

Personal Liberty

Sam Rolley

Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After covering community news and politics, Rolley took a position at Personal Liberty Media Group where could better hone his focus on his true passions: national politics and liberty issues. In his daily columns and reports, Rolley works to help readers understand which lies are perpetuated by the mainstream media and to stay on top of issues ignored by more conventional media outlets.

Join the Discussion

Comment Policy: We encourage an open discussion with a wide range of viewpoints, even extreme ones, but we will not tolerate racism, profanity or slanderous comments toward the author(s) or comment participants. Make your case passionately, but civilly. Please don't stoop to name calling. We use filters for spam protection. If your comment does not appear, it is likely because it violates the above policy or contains links or language typical of spam. We reserve the right to remove comments at our discretion.

  • RichardS

    Like to know what he used that even the FBI can’t decript it!

    • Like a G-6

      Likely TrueCrypt, Linux’s dmcrypt, and/or FreeBSD’s GBDE. They all know AES, Twofish, and Serpent symmetric algorithms.

  • Smee

    HAHAHA, FBI got snookered??