Appeals court: Fifth Amendment protections can apply to encrypted hard drives
Two rulings this week helped to clarify the circumstances under which a defendant can be compelled to reveal the contents of an encrypted hard drive. On Wednesday, the Tenth Circuit Court of Appeals let stand a judge's ruling in a Colorado case that the defendant in a mortgage fraud case could be compelled to produce the contents of her encrypted laptop. But on Thursday, the Eleventh Circuit Court of Appeals overturned a Florida contempt of court charge against a suspect in a child pornography case who refused to decrypt the encrypted contents of several hard drives.
While the two rulings reach opposite results, they don't necessarily contradict each other. The results turned on how much the government knew about the contents of the encrypted drives. In previous cases, the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment.
Read the comments on this post
from Ars Technica http://arstechnica.com/tech-policy/news/2012/02/appeals-court-fifth-amendment...