Encryption keys are protected by 5th amendment (yay!)

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Encryption keys are protected by 5th amendment (yay!)

Postby Qaanol » Fri Feb 24, 2012 9:59 pm UTC

The U.S. 11th Circuit Court of Appeals ruled yesterday that a defendant cannot be compelled to decrypt a hard drive, as refusing to provide the decryption key is protected by the 5th amendment to the U.S. constitution.

Wired.com article

Court opinion

This is good. Common sense reading of the constitution prevails once more.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby Роберт » Fri Feb 24, 2012 10:02 pm UTC

Good. I heard about the case and was really frightened when it sounded like it was going the other way.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby Dauric » Fri Feb 24, 2012 10:13 pm UTC

Ehh, too early for celebrations yet. This is a ruling from he 11'th circuit court, there's a similar case in the 10'th circuit's jurisdiction that sided with the government until/unless the defendant is convicted, at which time they'll consider the case "ripe" for appellate review. If the 10'th circuit goes the other way its likely we'll have to wait to see if the SCotUS takes it up before we know the final outcome.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby villadelfia » Sat Feb 25, 2012 5:56 pm UTC

Why exactly can't you just conveniently forget the key? It's not like they can prove you didn't.

Or connect your pc to a UPS and save your data on volatile memory. That way, if they take your pc, they also destroy the data.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby ahammel » Sat Feb 25, 2012 6:16 pm UTC

To what extent can the court order you to hand over evidence in the States? To judge from the ruling, you can't be ordered to hand over the combination to a combination lock, because that counts as testimony. Can you be ordered to turn over the key to a conventional lock?

[Edit] villadelphia: there's a case in progress where that's coming into play.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby Qaanol » Sat Feb 25, 2012 6:57 pm UTC

ahammel wrote:Can you be ordered to turn over the key to a conventional lock?

If the key is in a location known to the state, then provided there is probable cause the state can issue a warrant to search that place and seize that key. However, if the state does not know where the key is, you cannot be compelled to provide that information. Or at least that’s the way it should be.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby buddy431 » Sat Feb 25, 2012 7:22 pm UTC

We just had the thread where a different lady was ordered to decrypt the contents of the drive.

ahammel wrote:To what extent can the court order you to hand over evidence in the States? To judge from the ruling, you can't be ordered to hand over the combination to a combination lock, because that counts as testimony. Can you be ordered to turn over the key to a conventional lock?


The fifth amendment has traditionally been interpreted rather narrowly. As I mentioned in the previous discussion, you can be forced to give up documents, to provide keys to lock-boxes, to provide your name to police officers when stopped. In civil cases, refusing to testify against an allegation can be taken as an acquiescence to the allegation. If you wish to invoke your 5th amendment rights, you must do so explicitly - merely remaining silent during questioning is not sufficient. You can be compelled to testify against others, and, if granted immunity, compelled to testify about your role in a crime.

The court's opinion is pretty interesting. Evidently, there is a "Foregone Conclusion" doctrine on when the act of producing documents is testimonial, and thus subject to 5th amendment protection. If there is a "foregone conclusion" that the documents actually exist (i.e. established by other witnesses or evidence), then there is no testimonial involved in producing the documents. However, if they don't actually know that the documents exist, the act of producing them can be considered testimonial, and subject to protection. The court ruled that the government really had no way of knowing if there are actually encrypted files. That seems like a largely reasonable view, I suppose.

I think that the most interesting aspect of the case, however, is that the defendant was granted immunity with regards to producing the documents (but not from the contents of the documents themselves). The court ruled that this was insufficient, that the immunity must cover both the actual testimony, but also any information derived from it. The court said that if he were to be granted immunity with regards to the contents of the encrypted portions, he could have been compelled to decrypt them. I think this is likely where another court (perhaps the supreme court) would disagree.
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Re: Encryption keys are protected by 5th amendment (yay!)

Postby TheGrammarBolshevik » Sat Feb 25, 2012 7:50 pm UTC

Qaanol wrote:The U.S. 11th Circuit Court of Appeals ruled yesterday that a defendant cannot be compelled to decrypt a hard drive, as refusing to provide the decryption key is protected by the 5th amendment to the U.S. constitution.

They ruled that a defendant cannot be compelled to decrypt a hard drive if it is not a foregone conclusion that the defendant had access to the unencrypted contents of the drive.
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