A few years ago, we wrote about a case, in which a court found that a defendant could not be forced to give up his encryption key for encrypted files on his computer, because that would be a violation of the 5th Amendment. The argument was that the key was a form of speech, and that speech would self-incriminate the person. However, in a new case, a judge has said that it is not a 5th Amendment violation if a defendant is required to decrypt their laptop, even if that laptop contains incriminating information. The difference here? The key. In the first case, the question was over whether or not the defendant had to hand over the key. In this case, there was no request for the key -- just to decrypt the hard drive. As the court saw it, this was no different than demanding a defendant hand over documents related to a case, something that obviously happens all the time. It does seem like a fine line (and perhaps a meaningless distinction if law enforcement now knows to do the latter, rather than the former). Either way, the defendant in this case, Ramona Fricosu, accused of being part of a mortgage scam, is intending to appeal. It would be interesting to see the Supreme Court eventually weigh in, but I would guess that they'll side with this particular ruling.

Another big legal question is hitting the courts, as the Justice Deparment is asking a federal judge to require a woman to decrypt her encrypted laptop as part of a lawsuit against her for a mortgage scam. The government claims that forcing her to decrypt the laptop is no different than standard discovery procedures, such as requiring someone open a safe. However, others, including the EFF, are arguing on Fifth Amendment grounds, that individuals should not be compelled to decrypt such encrypted content, on the grounds that it's a form of incriminating yourself, if the content is found to be useful in prosecution. As we've discussed in the past, some courts have found that people cannot be forced to turn over their encryption key on this very basis. However, this case is slightly different, in that the government is seeking to get around such earlier rulings, by saying that it just wants to require her to type the password in herself to decrypt the laptop -- rather than demanding the key itself. However, the EFF's brief (pdf) in the case suggests that this really isn't a huge difference, and just the decryption requirement alone would be a Constitutional problem.

Two years ago, a US judge ruled that a guy with an encrypted hard drive did not have to hand over his encryption key to the police, as it would be a violation of the 5th Amendment (the right not to self-incriminate). The argument there is that the encryption key is a form of "speech." This is quite a reasonable ruling -- but it appears that over in the UK they view encryption keys quite differently. Last year, we wrote about a UK court ruling interpreting the Regulation of Investigatory Powers Act 2000 (RIPA) to mean that people could be required to hand over encryption keys, since encryption keys were not "speech" but an object that could be demanded. Unfortunately, this has now resulted in a schizophrenic man being jailed for refusing to decrypt his files. As many are noting, this seems to be an abuse of law enforcement, as the purpose of the RIPA law was supposed to be about stopping organized crime and terrorism, not dumping the mentally ill in prison.