When looking at recent case law and Supreme Court rulings on how advances in technology affect the rights of the accused it appears to be a mixed bag. This is especially true in the case where suspects are asked to disclose passwords or decryption keys. The Fifth Amendment to the U.S. Constitution provides that no person “be compelled in any criminal case to be a witness against himself.” There have been two key conflicting Supreme Court rulings that have bearing on the Fifth Amendment issue. The 1966 Miranda v. Arizona ruling resulted in the reading of “Miranda” rights by law enforcement officials on the “right to remain silent.” A recent case heard by the Supreme Court (Salinas v. Texas) concluded that silence alone was insufficient to invoke the Fifth Amendment privilege.
The state courts appear to be really divided on how to interpret Fifth Amendment issues with respect to non-disclosure of : 1) encryption keys, and 2) account passwords. I’ll summarize three separate state cases in chronological order from Delaware, Colorado, and Wisconsin below.
Late 2011 – Delaware Case
In Gore v. Long and BHA Group (Del. Ch. Dec. 28, 2011) (Parsons, V.C.) an employee “Long” was terminated after which he went to work for BHA Group. Gore asserted civil claims that Long had unauthorized access to company’s electronic documents. Long turned over company Blackberry upon termination but apparently had copies of some company documents on his personal smart phone and also retained some storage devices. Long could also face criminal penalties under certain provisions of Delaware law; therefore, he said that he would invoke the Fifth Amendment if asked questions involving potentially incriminating information.
During the trial Long did invoke the Fifth Amendment but Gore argued that Long had waived this right when he answered certain questions regarding the sequence of events. The judge (Vice Chancellor Parsons) used a “totality of the circumstances” test on the issue and upheld Long’s invocation of the Fifth Amendment by ordering the striking of certain portions of Long’s testimony. Although this case does not deal with encryption, the use of this test establishes an important legal precedent.
Early 2012 – Colorado Case
In U.S. v. Fricosu a court ordered Ramona Fricosu to provide an unencrypted version of her laptop to the court in a mortgage fraud case defrauding banks of an estimated $900,000 (Legal Editor, 2012, May). She had earlier claimed Fifth Amendment privilege in the case. Judge Robert Blackburn ruling for the U.S. District Court for the District of Colorado issued the order. Her laptop had been seized during a search in 2010; however, investigators had not been able to use it because it was encrypted using PGP Desktop (Lee, 2012, January 24). The judge cited a child pornography case in Vermont in making his decision (Grand Jury Subpoena to Boucher).
April 2013 – Wisconsin Case
In a Wisconsin case involving child pornography alleged to have been collected by Jeffery Feldman the court ruled to protect the accused’s Fifth Amendment rights. FBI agents traced the material to home of this software developer with a Fortune 500 company and, with a search warrant, seized his computer and “more than a dozen external hard drives with nearly 20 terabytes of storage capacity” (Vielmetti, 2013, April 25). All of the material was encrypted. Feldman invoked the Fifth Amendment when asked to decrypt the contents and he was held in contempt of court. Upon appeal, this decision was reversed.
For purposes of debate, I will take the position that courts need to provide law enforcement authorities with more direction on what can, and cannot be done with respect to compelling witnesses and/or suspects in providing decryption keys. In researching this topic I can across both the totality of the circumstances test and a principal that is being advanced called the “foregone conclusion argument.” It is my belief that a totality of the circumstances argument could be made in criminal cases where there is other evidence suggesting that information on an encrypted hard drive would substantiate a working hypothesis. Extending this logic even farther, law enforcement officials and prosecuting attorneys could also benefit by leveraging other evidence to make a foregone conclusion argument to a judge. Here, the case could be made that other evidence that points to the guilt of the accused and any unencrypted information from the digital evidence would only substantiate this case.
Of course, this strategy assumes that the law enforcement officials actually have additional evidence.
Lee, T. (2012, January 24). Judge: Fifth Amendment doesn’t protect encrypted hard drives. ArsTechnica. http://arstechnica.com/tech-policy/2012/01/judge-fifth-amendment-doesnt-protect-encrypted-hard-drives/
Legal Editor. (2012, May). Courts rule for, against hard drive encryption. Information Management, Vol. 26, Num. 3. http://vlex.com/vid/courts-against-hard-drive-decryption-411850098
Vielmetti, B. (2013, April 25). West Allis encryption case delves into Fifth Amendment case: Porn investigation has unusual twist. Milwaukee, Wisconsin – Journal Sentinel. http://www.jsonline.com/news/crime/west-allis-encryption-case-delves-into-fifth-amendment-debate-gi9mrag-204772741.html
 Miranda v. Arizona, 384 U.S. 436 (1966) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZS.html) and Salinas v. Texas, No. 12-246 (http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf).