Hard Drive Encryption and the Fifth Amendment

http://ow.ly/bzGAm

An article by Richard Raysman and Peter Brown posted on law.com on the LTN Webpage.

This article examines the relationship between the 5th Amendment and encrypted hard drives. If revealing an encrypted password would lead to criminal charges, is there a 5th Amendment right against self-incrimination that provides protection against having to reveal the password?

The article states, "In recent years, the issue of encryption has collided with the Fifth Amendment right against self-incrimination. While the contents of a hard drive are not themselves testimonial, the act of producing an encryption password in response to a subpoena nevertheless may have communicative aspects of its own, wholly aside from the contents of the data produced. See generally Fisher v. United States, 425 U.S. 391 (1976) ("The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced").

Thus, while the government might argue that an encryption password is comparable to a key to a file cabinet, a criminal defendant might counter that a password is more like spoken testimony or a combination to a wall safe, that is, a piece of potentially incriminating information from a person's mind. A number of courts have examined under what circumstances the government may compel a criminal defendant to reveal an encryption password for a laptop computer that has been seized as evidence."

The article examines two different ways the courts have analyzed this issue, to determine if the 5th Amendment is applicable.  The author describes the two legal standards as being "Contents of one's own Mind" and the "Foregone Conclusion" doctrine.

Under the first theory the author explain, "First, the Fifth Amendment privilege is not triggered where the government merely compels some physical act, that is, where the individual is not called upon to make use of the contents of his or her mind. In distinguishing testimonial from non-testimonial acts, the court has often compared revealing the combination to a wall safe to surrendering the key to a strongbox: Revealing the wall safe combination would convey the contents of one's mind while handing over the key does not and is therefore not testimonial. Doe v. United States, 487 U.S. 201, 210, n.9 (1988)."

The author explains the second theory as, "Under the "foregone conclusion" doctrine, an act of production is not testimonial if the government can show with "reasonable particularity" that it already knew of the materials at the time it sought the act of production, thereby making any testimony a "foregone conclusion."