Last month a federal magistrate in Wisconsin refused to order a suspect to decrypt his hard drive stating that such an order would violate the suspect’s Fifth Amendment rights. This week a federal judge ruled that such an order was, in fact, a violation of the Fifth Amendment:
A federal judge in Wisconsin today granted an emergency motion filed by Feldman’s attorney for additional time to establish that her client’s Fifth Amendment right to self-incrimination would be violated.
U.S. District Judge Rudolph Randa lifted the threat of contempt of court and jail time, at least temporarily, and asked for additional briefs from Feldman’s attorney and Justice Department prosecutors. A hearing is likely to take place this fall.
What makes this case particularly interesting is that the suspect, Jeffrey Feldman, is accused of possessing child pornography. Possession of child pornography is one of those crimes that instigates such a strong emotional response in people that they demand due process being tossed out the window and any suspects be immediately burned at the stake. There are a lot of arguments being made trying to argue that ordering a suspect to decrypt his hard drive isn’t a violation of the Fifth Amendment because the crime, in this case, is so heinous. Such an attitude, in my opinion, is extremely short sighted because it sets a precedence that allows the state to justify ordering anybody accused of any crime to decrypt their hard drive or be found in contempt of court (for which the punishment is being locked in a cage until you comply, effectively indefinite detention without due process).
At some point I predict that determining whether or not the Fifth Amendment protects suspects from court orders demanding their decryption keys will reach the Supreme Court. Regardless of whether or not that happens one thing is for certain, encrypting your hard drive is the best way to protect yourself against snooping state agents who come into possession of your devices.