Saturday, February 25, 2012

Cryptome: Encryption and Fifth Amendment rights

An alleged pedophile appealed a contempt citation to the 11th Circuit Court of Appeals. A judge in a lower court charged John Doe with contempt when he refused to decrypt a laptop,

On April 7, 2011, John Doe appeared before a Northern District of Florida grand jury and was directed to produce the unencrypted contents located on the hard drives of Doe’s laptop computers and five external hard drives.

Doe informed the United States Attorney for the Northern District of Florida that, when he appeared before the grand jury, he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.

Because the Government considered Doe’s compliance with the subpoena necessary to the public interest, the Attorney General wanted Doe to decrypt the drive and provide the contents to the court.

The U.S. Attorney offered Doe limited immunity, but not derivative immunity. However, once Doe decrypted the drives, he could then be prosecuted under child pornography statutes.

The 11th Circuit Court of Appeals said the district court therefore erred in two respects.

First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, to Doe's encryption. (I)t allowed the Government derivative use of the evidence that became available once the drives were decrypted. . .
Immunity coextensive with the Fifth Amendment requires both use and
derivative-use immunity.  The Government’s offer of act-of-production immunity
clearly could not provide the requisite protection . . .

The Court then stated:

We hold that Doe properly invoked the Fifth Amendment privilege.  In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced.  Stripped of  Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt.  

The district court’s judgment is accordingly REVERSED.

Rightardia suspects John Doe used TrueCrypt software and a strong 16 digit password on his laptop and hard drives.


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