Another Reason to Encrypt Your Data

In an interesting development a federal magistrate in Wisconsin has refused to order a suspect to decrypt his hard drive citing the Firth Amendment:

The issue is front and center as a federal magistrate is refusing to order a Wisconsin computer scientist to decrypt his data that the authorities seized from kiddie-porn suspect Jeffrey Feldman. The reason is simple: The Fifth Amendment right against compelled self-incrimination protects even those suspected of unsavory crimes, according to U.S. Magistrate William Callahan Jr. of Wisconsin, who wrote:

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with ‘reasonably particularity’—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination. (.pdf)

The issue of whether or not being forced to decrypt information is a violation of the Firth Amendment is still being debated. In Colorado, for example, a woman was ordered by a court to decrypt her hard drive and the decision was upheld by a federal appeals court. I’m sure this decision will be appealed and that’s when this battle will become more interesting. Still, for the time being, this ruling gives yet another reason to encrypt your data. It may offer you some legal protection against the watchful eye of the state.