Feds Can’t Force Man to Decrypt Computer Data

(CN) - A man suspected of sharing child pornography is not in contempt for refusing to decrypt his computer files, the 11th Circuit ruled.

Armed with a search warrant in October 2010, law enforcement confiscated digital media from a California hotel being occupied by John Doe, whose identity is protected in court documents.

Authorities believed that they tied Doe to their investigation of YouTube user "suspected of sharing explicit materials involving underage girls," according to the Atlanta-based federal appeals court.

FBI forensic examiners were unable, however, to access certain portions of the two laptops and five external hard drives seized from Doe.

A Florida grand jury subpoenaed Doe to disclose the media, which had been encrypted with the TrueCrypt software program.

Doe refused, however, invoking his Fifth Amendment right against self-incrimination and claiming he did not know how to decrypt the files even if he wanted to. But the Northern District of Florida rejected these claims, holding Doe in contempt and committing to the custody of a U.S. marshal.

The 11th Circuit reversed last week, finding that the computer data would trigger Fifth Amendment protection because it would be testimonial.

While the government has shown that the computer drives could contain millions of files, it is not a "foregone conclusion" that evidence exists, the 36-page decision states.

"In short, we conclude that Doe would certainly use the contents of his mind to incriminate himself or lead the government to evidence that would incriminate him if he complied with the district court's order," Judge Gerald Tjoflat wrote for a three-judge panel. "Moreover, the government has failed to show any basis, let alone show a basis with reasonable particularity, for its belief that encrypted files exist on the drives, that Doe has access to those files, or that he is capable of decrypting the files. The 'foregone conclusion' doctrine does no apply under these facts."

"The Fifth Amendment protects Doe's refusal to decrypt and produce the contents of the media devices because the act of decryption and production would be testimonial," Tjoflat added.

The court could have compelled decryption of the evidence if it had offered "constitutionally sufficient immunity," the decision states

Internet privacy advocates applauded the decision.

"This is the first time an appellate court has ruled the Fifth Amendment protects forced decryption - a major victory for constitutional rights in the digital age," according to the Electronic Frontier Foundation.

"As we move into an increasingly digital world, we're seeing more and more questions about how our Constitutional rights play out with regards to the technology we use every day," Foundation attorney Hanni Fakhoury said in the statement. "This is a case where the appeals court got it right - protecting the Fifth Amendment privilege against self-incrimination."

Doe was represented by Chet Kaufman, a federal public defender from Tallahassee.

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