The District Court for the Eastern District of Wisconsin held last week that compelled production of decrypted data violates the Fifth Amendment because it would require the suspect to admit to having access and control over the devices. In re The Decryption of a Seized Data Storage System, 13-M-449 (E.D. Wis. 2013).
The FBI seized 16 storage devices from the suspect, nine of which were encrypted. After four months of attempts to access the files, the government sought to force the suspect to "assist in the execution" of the search warrant by providing a decrypted copy of the files.
The predominant legal issue in such cases is the Fifth Amendment and whether or not the act of providing the decrypted files would be considered "testimonial." The issue has caused a split in district courts, but only the Eleventh Circuit has decided the issue at the appellate level, holding that forced production does violate the Fifth Amendment.
As distinguished from some other cases, the government here knew the encrypted drives contain files and had evidence to show that some of the filenames indicate they are images of child pornography. Further, the defendant has a computer science degree and works as a software developer, so he "may very well be capable of accessing the encrypted portions of the hard drives."
However, the deciding issue for the court was whether or not the suspect "has access to and control over the ... devices." Because he has not admitted to having access and control, he could not be compelled to provide the decrypted copy.
This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.Thus, the government's attempt to compel production of the files was denied. Visit our encryption label to read about related cases on encryption and compelled production.