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U.S. Court Extends Fifth Amendment to Encrypted Data

| 27 Feb 2012 16:49
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A U.S. Federal Appeal Court has ruled that the imprisonment of a man who refused a grand jury order to decrypt data on his hard drives for an FBI investigation was a violation of his constitutional rights.

An investigation into the unspecified but presumably criminal activities of a Florida man ran into a wall when it turned out that the data on two laptops and five external hard drives seized by the FBI was encrypted with a program called TrueCrypt. Unlike on television, where the boys in the lab can create a GUI in Visual Basic and have the whole thing summarized and uploaded in a 20-second montage, this real-life encryption left the feds stuck. A grand jury thus ordered the man to decrypt the content but he declined, invoking his Fifth Amendment protection against self-incrimination.

His refusal to comply with the order led to a finding of contempt and a trip to the slammer but after some further courtroom tussling, including an amicus filing by the EFF, the 11th U.S. Circuit Court of Appeals declared that the claim is legitimate. Decrypting data is "testimonial," it ruled, and thus protected by the Fifth Amendment.

"The government's attempt to force this man to decrypt his data put him in the Catch-22 the Fifth 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. "

The EFF has filed a separate "friend of the court" brief in a similar case in Colorado, where a woman is contesting an order to decrypt data on a laptop seized in an investigation of fraudulent real estate deals. She has been ordered to decrypt the data this month following a rejection of her Fifth Amendment claim by an appeals court.

Source: Electronic Frontier Foundation

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