US Citizens May Be Forced to Decrypt Hard Drives

CNET posted an article yesterday concerning a distressing ruling by a Colorado federal judge where he decided that American citizens can be forced to decrypt hard drives in order to allow law enforcement to examine the contents.

In his ruling, Judge Blackburn writes:

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents…”

I suppose this is the sort of thing about which reasonable people can disagree. The fifth amendment asserts that, among other things, a citizen cannot ”be compelled in any criminal case to be a witness against himself.” One might assert that, in decrypting your data, you are not actually witnissing against yourself. Can we reason that the typing of the passphrase is a form of speech, and therefore would qualify as a form of “witnessing”?

As one might expect, Judge Blackburn trots out the “public interest” show pony in his justification, and asks to Think of the Children™, remember the terrorists, etc.

“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these.  Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) [. . .]“

There have been other cases where this has come up (referenced in the CNET article), and given the conflicting end results it seems likely this will make its way to the U.S. Supreme Court in the semi-near future. The case immediately in question involves money laundering and fraud.

This seems as good a time as any to segue into the topic of encryption and file erasure. While it remains to be seen what the final word is regarding the courts’ ability to compel you to decrypt your data, it is still good practice to encrypt anything you wish to remain private, especially on portable devices which may be lost or stolen. Most likely you have no crimes to hide from the police, but you almost certainly have some kind of information that you’d prefer not to be disclosed to all and sundry. Bank information, various email and social accounts left logged-in, etc.  Truecrypt is a fantastic open source encryption program that I’d highly recommend. Also, as you may or may not be aware, deleting files from your computer does not actually remove them, but only marks the space free. If you want something to acutally disappear, it must be overwritten. I would recommend Eraser for this task. In a world of ever-shrinking privacy, you must take personal responsibility to keep what you can of it.

(Hat tip to The Agitator for posting the article link.)

UPDATE: Discussion to be found on The Volokh Conspiracy.

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