Appeals court rules Fifth Amendment applies to hard drive decryption

On Thursday the Eleventh Circuit Court of Appeals overturned a Florida contempt of court charge against a suspect in a child pornography case. In that case the defendant refused to decrypt the contents of several encrypted hard drives. The appeals court ruled that in this case the Fifth Amendment protected the defendant against the forced decryption of his hard drives.

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In the original case titled, United States v. Doe, FBI agents confiscated two laptops and five external hard drives from a man they were attempting to prosecute on charges of child pornography. The information on the hard drives was encrypted. The suspect was ordered by a grand jury to produce the unencrypted contents of all of the drives. The suspect's response was to evoke his Fifth Amendment right not to incrimination himself. He was found to be in contempt of court and was thrown in jail.

The Electronic Frontier Foundation (EFF) came to the man's aid and argued that the Fifth Amendment should apply in this case. The appeals court agreed and the ruling of contempt was overturned.

The EFF press release on the case reads,

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"The government's attempt to force this man to decrypt his data put him in the Catch-22 the 5th Amendment was designed to prevent – having to choose between self-incrimination or risking contempt of court," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the appeals court recognized the important constitutional issues at stake here, and we hope this ruling will discourage the government from using abusive grand jury subpoenas to try to expose data people choose to protect with encryption. "

There is a similar appeal going on in a Colorado case involving a woman who is accused of mortgage fraud. This same week that appeals court upheld the ruling that Ramona Fricosu will have to decrypt the contents of her hard drives this month.

So what exactly is the difference between these two cases and why are these appeals courts ruling in completely opposite directions on the same matter? It seems to boil down to how much information the government had about the contents of the hard drives.

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In the Florida case the FBI knew very little about the contents of the drives. In the Colorado case the police had intercepted a phone call made by the suspect in which she claimed ownership of the laptop in question and alluded to the fact that it may contain incriminating evidence in the encrypted segment.

These two rulings are completely opposite and it's arguable that so are the specifics of each case. This situation shows that there isn't likely going to be a blanket precedent set about whether or not hard drive decryption falls under the umbrella of the Fifth Amendment. It will be interesting to see how similar cases are handled by other courts across the United States or if one of these cases goes all the way up to the Supreme Court.

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