Judge Says Giving Up Your Password May Be A 5th Amendment Violation

from the protect-your-data dept

Courts have gone back and forth over the years concerning whether or not being forced to give up your password to reveal encrypted data is a violation of the Fifth Amendment. Now there's been yet another decision saying that someone cannot be forced to give up their password, because it likely violates their Fifth Amendment rights.
This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with ‘reasonably particularity’—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.
It's definitely a good thing to see courts getting this right. Being forced to give up your passwords and encryption is quite a slippery slope. It's good to see judges pushing back.
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Filed Under: fifth amendment

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  1. icon
    btr1701 (profile), 29 Apr 2013 @ 12:42pm

    Re: Re:

    > Then you get slapped with 'contempt of court',
    > which is basically the legal way to coerce you
    > to cooperate, and can involve pretty much unlimited
    > jail time until you agree to do what they want you to.

    That only works when there's undeniable proof that the defendant *can* produce what the government is requesting.

    Unless the government can prove that you have the password and are refusing to provide it-- that you haven't forgotten it, that you purposely never learned it, etc.-- they can't keep in you jail forever based on that.

    The key concept behind these kinds of contempt rulings is that "the defendant has the keys to his own jail cell". In other words, he can let himself out at any time. All he has to do is cooperate. If the defendant actually *can't* let himself out because he doesn't have the information the government wants, then the contempt charge is invalid and if his lawyer can show that on appeal, the trial court's contempt order will be overturned.

    Still and all, while you can theoretically be subject to indefinite incarceration for contempt, no jailing for contempt in America has ever gone beyond a couple of years, and that's at the extreme. So if I was a defendant and knew that I had stuff on my computer that would send me to the state pound-you-in-the-ass penitentiary for 10-15 years, I'd take two years in the county jail for contempt every time and leave the evidence encrypted where the government couldn't get to it.

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