A Colorado judge has ruled that a defendant must decrypt her PGP- encrypted hard drives and allow the police to look at the device for incriminating evidence.
Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination.
“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.
Although the defendant in the case intends to appeal, there are conflicting decisions already on the books.
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s “protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination,” the court ruled (PDF).
A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.
The debate as to whether or not decrypting a computer by a defendant is a violation of the fifth amendment will continue as more cases like these come to trial. On the one side the argument is that decryption is similar to handing over the keys to a storage or safe deposit box while, on the other, privacy advocates state that giving up any information to decrypt a computer is the equivalent of testifying against oneself.
Also of note is that, in this particular case, the prosecution has to prove that she has the means to decrypt the laptop. If she is unable to do so, there is little else the prosecution can do.
As it stands right now, there is case law for both sides and it does not appear as if the debate is going to be settled any time soon. At some point, this issue will reach the Supreme Court because there are far too many conflicting points on both sides, in numerous cases, for the issue to be clear.