Does Fifth Amendment protect encrypted hard drives? Depends on the court

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Encryption Deviceflickr/Ryan Somma

Dueling court decisions mean encrypted hard drives protected in Atlanta, not Denver.

In Atlanta, the U.S. Court of Appeals of the 11th Circuit ruled in a child pornography case that an encrypted disk fell under the Fifth Amendment. Therefore, forcing the owner to decrypt the drive would violate his right against self-incrimination. But in Denver, the U.S. Court of Appeals of the 10th Circuit ruled that Ramona Fricosu, under investigation for mortgage fraud, does have to unlock her hard drive, reversing a lower court decision.

Earlier cases don't clarify much. Lower courts in Vermont and Colorado ruled suspects must decrypt. In 2004, a Sheriff's deputy under investigation in Washington state "forgot" his password, and the case ended. The Electronic Freedom Foundation opposes forced decryption, since an encrypted disk protects against computer crimes, fraud, and data breaches from lost or stolen laptops.

Shame

Bad move on the court. More lost respect from me on a lousy job.

lensman3 on huffingtonpost.com

Realize that this is a fairly narrow opinion, and, in my opinion, not a particularly well-reasoned one.

newbusox on news.ycombinator.com

Ah, the old "War on Terror" excuse. The government just forced her to incriminate herself. Goodbye, more Constitutional rights.

ILoveGreatDanes on huffingtonpost.com

Good

I think this is the first time I’ve seen a judge accurately describe encryption, rather than interpret it with an “old person metaphor” (like the internet being “a series of tubes”!).

ecurb on volokh.com

This is a good decision. Both government and commercial interests have been doing their best to limit everyone’s’ civil liberties. It is long past time that a line is drawn in the sand.

Ronald J Riley on wsj.com

Finally, a ruling that protecting one’s privacy is not a criminal act.

Owen H. on volokh.com

Practical advice

If the government appeals, it goes to the supremes and if they hold that its a violation of your fifth amendment then everyone in the country gets to claim the fifth rather than give up the key.

ChuckMcM on news.ycombinator.com

Thats why a few ounces of thermite in a plastic baggy mounted above the hard drive beat any encryption.

Stephen a Fazekas on huffingtonpost.com

It's also worth adding that a safe can be forced open physically within a reasonable amount of time. A drive, encrypted properly, may not be able to be decrypted our lifetime, and this is what leads law enforcement to attempt to 'force' the suspect to provide the key themselves.

elithrar on news.ycombinator.com

Looks like we are going to have to torture her. If you are hiding information from US you must be dealt with. Constitutional rights are quaint, and not very useful in a court of law.

Samuel Bun on huffingtonpost.com

While we wait for the Supreme Court to resolve this, leave a comment and say whether or not you believe an encrypted drive is protected by the Fifth.

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