Does the Fifth Amendment protect encrypted hard drives? Depends whether you're in the Mile High City or South Beach

Two US Court of Appeals rulings this week clarified 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 sustained 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 decisions seem diametrically opposed, they don't necessarily contradict each other. The contrasting results depended on how much the government knew about the contents of the encrypted drives.

In the Colorado case, the police had intercepted a telephone conversation in which the defendant, Ramona Fricosu, acknowledged her ownership of the laptop and alluded to the existence of incriminating documents in the encrypted portions of the hard drive. The government successfully argued that this precluded her from claiming Fifth Amendment protection, since she had already acknowledged the existence of incriminating documents in the case. The Tenth Circuit affirmed the lower court's decision Wednesday citing previous cases where 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.

In the Florida case, on the other hand, the government lacked any specific evidence about the contents of the encrypted hard drives owned by an accused child pornographer, identified only as John Doe. A forensic expert acknowledged it was theoretically possible that the drives, which were encrypted using TrueCrypt, could be completely empty. Hence, forcing the suspect to decrypt the drive would be forcing him to reveal whether any relevant documents exist, which would be inherently incriminating. The Eleventh Circuit reversed the lower court’s decision to hold Doe in contempt and ruled that forcing him to decrypt the drives would be unlawful. Relying on US v. Hubbell, it held that 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.

Sources: WSJ, Wired

Francis Paolo Tiopianco, Entry #11