Data Encryption and The Fifth Amendment

Yesterday I mentioned that I keep all of my personal data encrypted meaning outside of being compelled to reveal my keys nobody would be able to obtain that data. Then I mentioned in the case of government entities stealing my equipment I would avoid revealing my encryption keys by simply stating my fifth amendment right, well apparently the Department of Justice (DoJ) believes that right is null and void (like all of our other so-called rights):

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution’s Fifth Amendment, which broadly protects Americans’ right to remain silent.

Although this turn of events isn’t at all surprising it is depressing. The justification being used by the DoJ is completely idiotic as well:

Prosecutors stressed that they don’t actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding “the password to the drive, either orally or in written form.”

Let’s stop and take a look at what the fifth amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I’ve emphasized the important part for this post. Our supposed fifth amendment right is against being forced to bear witness against yourself. Note how the amendment doesn’t state in what way you’re protected from being a witness against yourself. What the DoJ is arguing is the fifth amendment states you can’t be compelled to speak against yourself or write information that could be used against you. What the fifth amendment actually says is that you can’t be compelled to be a witness against yourself, period. By having to enter encryption keys you would in fact be a witness against yourself as it would reveal potentially self-incriminating information.

Obviously the actors of the state are going to go with an analogy that best benefits them in incriminating anybody they wish so they are going to claim that encryption keys are the same as safe combinations which you can be forced to provide. Here’s the thing, as written the fifth amendment would protect you against even providing a safe combination because that would make you a witness against yourself.

Thankfully the Electronic Frontier Foundation (EFF) has filed an amicus brief arguing that being forced to provide encryption keys is a direct violation of fifth amendment protections. Their argument is sound albeit against the desires of the state so will likely be ignored:

Decrypting data on a computer is a testimonial act that receives the full protection of the Fifth Amendment. This act would incriminate Fricosu because it might reveal she had control over the laptop and the data there. The government has failed to show that the existence and location of the information it seeks is a foregone conclusion. Furthermore, the limited immunity offered by the government is not coextensive with the scope of Fricosu’s privilege. The Court should therefore find that the government has failed to take the steps necessary to secure Fricosu’s Fifth Amendment rights and deny the application.

You should read the entire amicus brief as it makes for interesting reading and presents several previous court cases that favor the EFF’s argument.

Following the wording of the fifth amendment and the spirit in which it was written logical conclusion would be that you are not required to do anything for the state that would allow it to prosecute you. Of course being the government gets to rule on the scope of protections against the government the amendments in the Bill of Rights has little meaning. This is why jury nullification is such an important right, even if the government rules that the fifth amendment doesn’t apply a jury could rule in favor of the defendant on grounds that being forced to reveal encrypted information is a violation of fifth amendment protections.