Can the Government Force You to Decrypt your Electronic Device or Hand over Your Password?

Hopefully, at some point, the Supreme Court will weigh in on the question, as lower court decisions conflict on the answer. The result might differ depending on the context (at the U.S. border as a result of a customs search or as a result of a police stop or search which took place within the U.S.), whether the government already knows the laptop contains incriminating evidence, and, perhaps, whether the government requests the password or seeks an order for the owner to decrypt the device (without revealing the password). In the latest case, a federal judge in Colorado, ordered a laptop owner to release the contents of her computer’s encrypted hard drive. The court’s order.

The Verge: ”Decrypting Laptop Doesn’t Count as Self-Incrimination, US Federal Judge Rules”

The Electronic Frontier Foundation: ”Disappointing Ruling in Compelled Laptop Decryption Case”

The EFF’s amicus brief in the case.

Orin Kerr at The Volokh Conspiracy”Encryption and the Fifth Amendment Right Against Self-Incrimination:”
“The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a ‘foregone conclusion’ that dissipated the Fifth Amendment privilege. If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a ‘foregone conclusion’ and the Fifth Amendment privilege cannot block the government’s application.”

photo © 2012 j.r.mchale