A Geek With Guns

Chronicling the depravities of the State.

Judge Order Violates Fifth Amendment Protections

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I understand the Bill of Rights has been relegated to the back room of a dusty library but it would be nice if the government would at least pretent to abide by it onces in a while. A judge has ordered a woman to decrypt her laptop harddrive so that prosecutors can used the data to nail her to the wall:

A judge on Monday ordered a Colorado woman to decrypt her laptop computer so prosecutors can use the files against her in a criminal case.

The defendant, accused of bank fraud, had unsuccessfully argued that being forced to do so violates the Fifth Amendment’s protection against compelled self-incrimination.

“I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Colorado U.S. District Judge Robert Blackburn ruled Monday. (.pdf)

The judge ruled incorrectly. Let’s take a look at the text of the Fifth Amendment:

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 offence 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.

Emphasis added to the part that is relevant to this story. According to the Bill of Rights you may not be compelled in any criminal case to be a witness against yourself. By having to reveals her decryption key the woman is being compelled to be a witness against herself. Sadly our country gives the government the ability to both declare and interpret law meaning their definition of the Fifth Amendment directly opposes the reading of it whenever it’s convenient:

The government had argued that there was no Fifth Amendment breach, and that it might “require significant resources and may harm the subject computer” if the authorities tried to crack the encryption.

In other words the Fifth Amendment doesn’t come into play if it would make it difficult for the government to prosecute you. It seems that TrueCrypt’s plausible deniability may be a person’s only protection against being forced to reveal their decryption keys.

Written by Christopher Burg

January 25th, 2012 at 10:00 am