Once Again, Courts Struggle With Whether Or Not Forcing You To Decrypt Your Computer Is Unconstitutional
from the back-and-forth dept
For years, courts have gone back and forth over whether or not it’s a 5th Amendment violation to force someone to decrypt their computer hard drives. Some have noted that it is a form of self-incrimination, and thus cannot be required, but others have ruled the other way. Not surprisingly, the Justice Department thinks there’s no Constitutional issue and that judges should regularly require decryption.
This issue is getting lots of attention yet again, as a judge recently ruled that a guy accused of child porn had to decrypt his hard drives, while another judge quickly reversed that order, noting that the 5th Amendment issues hadn’t been properly briefed, and ordering the parties to present their arguments on the 5th Amendment issue before the court would make a final decision. This case alone has gone back and forth a few times, with the magistrate judge initially saying that the 5th Amendment forbade the decryption order, but then changing his mind, only to then step aside and let the other judge put things on hold for a bit.
This issue is going to come up again and again, and you know that eventually the Supreme Court will have to weigh in. In the meantime, it’ll be interesting to see how these cases play out. In this case, part of the reason why the magistrate ordered the decryption was because law enforcement had cracked one of the hard drives themselves, and claimed to have found evidence of child porn. The judge felt that provided enough evidence to require the other drives be decrypted, since before that part of the argument had been that there hadn’t been enough evidence to require the decryption. Honestly, it seems like the fact that feds decrypted the drive themselves actually provides more weight to the flip side of the argument, noting that the feds have other ways of getting evidence that don’t require forcing someone to decrypt their own hard drives. There’s nothing wrong with using legally obtained evidence of a crime against someone — but forcing them to build their own case against themselves is certainly a big Constitutional no-no.