To qualify for Fifth Amendment protection from self-incrimination, a court must be satisfied that the requested testimony will be a (1) compulsion of a (2) testimonial communication that is (3) incriminating. When dealing with material evidence that is locked away from access, most courts have followed Supreme Court guidance, where compelling a party to surrender the key to a strongbox may be constitutional under the Fifth Amendment, but forcing that party to reveal the combination to a wall safe is not.
But recently, courts have struggled to extend this doctrine to apply to encrypted computer disks. An encrypted disk is a portion of a computer’s filesystem that is unintelligible without first decrypting it with the proper password. Courts are now deciding whether or not compelling the decryption of electronic media is a form of testimonial communication that qualifies for Fifth Amendment protection.
This question was first directly confronted in 2009, when a U.S. District Court Judge ordered the decryption of laptop confiscated by an Immigration and Customs Enforcement agent. Such an action would not be testimonial because the Government was already aware of the existence and the location of the encrypted files. Furthermore, in U.S. v. Fricosu, the defendant was compelled to decrypt the contents of her laptop. The district court reasoned that the government had already provided sufficient evidence establishing the existence and location of certain computer files, and thus compelling the decryption was not testimonial. The court order was appealed, but the 10th Circuit Court declined to hear the appeal until the case had been decided.
Most recently, the 11th Circuit Court held that the decryption of a hard disks suspected of containing child pornography was a form of testimony that was protected by the 5th Amendment. Noting that the Government did not demonstrate knowledge of any specific files on the encrypted storage disks, the court concluded that compelling the decryption of those disks would require granting immunity consistent with Fifth Amendment protection. The court found it very important that expert testimony conceded that the encrypted hard disks could in fact simply be empty.
All these decisions demonstrate that the Fifth Amendment protection does in fact extend to encrypted computer disks, but there still remains a need for doctrinal clarity: specifically, to what extent must the government show knowledge of the encrypted content? And by what standard of proof? In Fricosu, the district court glosses over this analysis, noting that there was “no question here but that the government knows of the existence and the location of the computers’ files” and that no knowledge of “specific content of any specific documents” was not a barrier to compel production.
Disk encryption is becoming more common as people have begun realizing that any information stored on an electronic device does not qualify for a very high degree of privacy protection. Free software such as TrueCrypt provides the public with an easy method for encrypting sensitive information. Undoubtedly, the courts will confront this issue again and hopefully they will identify clearer guidelines to follow in order to balance the public good with individual privacy.