Self-Incrimination and Encrypted Data

Does the 5th Amendment's protection against self-incrimination protect a criminal defendant's refusal to de-encrypt computer files that may provide evidence of wrongdoing?

CNET's Declan McCullagh writes about the case of a Colorado woman accused of mortgage fraud. In a raid of her home, police found a laptop containing encrypted files that may provide evidence in the case. So far, the woman has declined to provide the password to police. Prosecutors are seeking a court order to compel her to de-encrypt the files (though not necessarily to reveal the password to them directly).

The Department of Justice argues:

Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

Her attorneys argue that her 5th Amendment protection from self-incrimination should shield her from assisting a criminal investigation against her using her knowledge of the password.

In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"

McCullagh notes that legal scholars have been grappling with this hypothetical case for some time and that there remains much debate about whether a computer password is protected by the 5th Amendment.

I suspect, however, that if the government is permitted to compel the de-encryption of files from memorized passphrases:

1. Criminal defendants will become very forgetful
2. New encryption software that automatically securely deletes files if an incorrect password is entered will find its way into wide circulation