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In child pornography trial, court allows suspect to refuse to decrypt hard drive

In 2010 child pornography investigation, court upholds suspect's right to refuse to open up his hard drive.
Legal ruling harddrive encryption 2012 02 24Enlarge
US Homeland Security Secretary Janet Napolitano attends the 31th International Conference for Data Protection and Privacy Commissioners at the Palacio de los Congresos in Madrid on November 4, 2009. Hundreds of privacy experts from around the world met in Madrid for a three-day conference which aims to arrive at a global standard for the protection of personal data. (Javier Soriano/AFP/Getty Images)

In an appeal of a 2010 child pornography investigation, the 11th Circuit Court of Appeals has ruled that individuals may invoke their Fifth Amendment protection from self-incrimination when refusing to decrypt hard drives that have been confiscated by police.

The implication of the court’s decision may affect any number of federal investigations against child pornography, terrorism, or any other case involving the use of a computer. The decision may also affect US citizens returning from overseas travel where they are often demanded to allow Homeland Security agents to examine their hard drives.

In March of 2010, a YouTube account was flagged for videos that were suspected of explicitly depicting underage girls. Police from Florida’s Santa Rosa Country Sheriff’s office obtained several IP addresses linked to the YouTube account and determined that some of the IPs belonged to a hotel. Upon further investigation, the suspect in the case, referred to as John Doe, was found after investigating hotel records. 

The identity of the suspect was not made public because he had not yet been formally charged in the case.

Later that year, police tracked down John Doe in a hotel in California, arresting the suspect, seizing two laptops and five external hard drives, totaling five terabytes of data. 

According to court documents, the suspect used a relatively popular hard drive encryption software program, “TrueCrypt,” to protect users from identity theft if their computers were stolen. 

When the court asked the suspect to decrypt the data on the hard drive, he invoked his Fifth Amendment protection from self-incrimination. The court then found the suspect in contempt and incarcerated him.

The case’s prosecution argued that in legal precedent, suspects have been forced to comply with simple acts that did not constitute legal testimony, such as opening a door or a safety deposit box and may not invoke their Fifth Amendment right. However, in this case, judges stated that the suspect was being forced to use the “contents of his own mind” in testimony that would incriminate him, thereby triggering Fifth Amendment privilege. 

“We hold that the act of Doe’s decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions,” read the court’s opinion. 

In a similar case in Vermont in 2009, a suspect was ordered to decrypt his hard drive and hand over the files to the court. However, in this particular case, evidence of child pornography had already been found on the hard drive. 

http://www.globalpost.com/dispatches/globalpost-blogs/the-grid/child-pornography-trial-hard-drive-encryption-fifth-amendment

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