In a startling decision issued yesterday in a Colorado court case, a judge ruled that decrypting information stored on a woman’s personal laptop did not violate her Fifth Amendment right to not stand as a witness against herself. The defendant had been accused of bank fraud, but stood in argument that forcibly providing the unencrypted files would be in violation of her Fifth Amendment rights.
For those unaware, the Fifth Amendment reads as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This amendment breaks down into 5 distinct parts:
- You have a right to a trial by your peers in any criminal case except while serving as a member of the armed forces either during wartime or peacetime.
- You may not be tried for the same crime twice.
- You cannot be forced to testify or give witness against yourself in any criminal case.
- You may not be deprived of your life, liberty, or property without a trial.
- The government may seize your private property for public use but must compensate you fairly for it.
The judge made the ruling based on a statement made by authorities which claimed that cracking the decryption would “require significant resources and may harm the subject computer.” The Colorado judge also said that there was more than enough evidence to support the decision, including a recording taken in the jail of the defendant suggesting that the laptop might have evidence pertinent to the case. The ruling stipulated that the defendant must turn over to the authorities an unencrypted hard drive by 21 February, adding that the government would be precluded, “from using [the defendant’s] act of production of the unencrypted hard drive against her in any prosecution.”
The judge’s ruling comes as the first in what will surely be a long and arduous process of appeals. Several civil rights groups are following the proceedings, since this issue has never been fully weighed in upon by the Supreme Court.
It is certainly a dicey issue, since it refers to giving up an encryption key, or password, which has no physical equivalent. This means that the passcode is normally only stored in your own imagination. Some say that it would be similar to writing a paper diary in code, then being forced to give up the cypher for your notes. Either way, this precedent will have a large impact on future cases. It is highly likely to see some action in the Supreme Court at some point.
How do you feel about this issue? Let us know in the comments below.
