Monday, February 27, 2012

Eleventh Circuit Rules Defendant Cannot Be Compelled to Divulge Encryption Passphrase

From Forensic Focus: "... the Eleventh Circuit has held that a defendant’s “decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents.”

"... Assuming the Government has a right to inspect all portions of the hard-drives, based on probable cause to believe they were an instrumentality of a crime, then it is appropriate to begin the Fifth Amendment analysis. Under the Fifth Amendment, “[n]o person … shall be compelled in any criminal case to be a witness against himself.” The courts have consistently interpreted this provision as “protect[ing] a person . . . against being incriminated by his own compelled testimonial communications.” Fisher v. United States, 425 U.S. 391, 409 (1976). Thus, to be afforded the protection, the statement must be: (1) compelled, (2) testimonial in nature, and (3) serve to incriminate the declarant in a criminal proceeding. If these elements are met, the declarant has the right “not to answer questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) ..."

"... In this case, there was no dispute that defendant had care, custody, and control of the computers and hard-drives. As the sole owner, no one else could have created the encrypted volumes, and the Eleventh Circuit’s opinion does not indicate that defendant claimed someone else had created those volumes. Therefore, it is not clear to me why defendant’s mere knowledge of the passphrase is an admission of guilt, any more than it would be to surrender the a key hanging about his neck, or to surrender the combination code to a safe in a home, that was properly within the scope of a valid search warrant (as these hard-drives were). Knowledge of the passphrase is not an element of the crime, but rather possession of child pornography. (Conversely, a murderer’s knowledge of the secret location of his victim’s grave would be incriminating, because only the murderer would know that location). Therefore, although the court intoned, “the Government appears to concede, as it should, that the decryption and production are compelled and incriminatory,” I don’t agree that the act of decryption and production, by itself, is incriminatory (even though the fruits of that production could contain evidence that is incriminating).

That leaves the question of whether the passphrase is testimonial. The Court noted, “an act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual’s possession or control.” Yet, as noted above, it is uncontroverted that defendant had exclusive care, custody, and control of the encrypted volumes, and knows the passphrase, regardless of whether those volumes contain contraband. Citing United States v. Hubbell, 530 U.S. 27 (2000) and Fisher v. United States, supra, the court relied upon the so-called “foregone conclusion” doctrine, which posits that an act of production is not testimonial—even if the act conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed materials—if the Government can show with “reasonable particularity” that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a “foregone conclusion.” I contend that exception is here met, because it is not in dispute that the contraband was traced back to three separate IP addresses in different hotel rooms rented by defendant, and that there was no other plausible repository for those files to exist but his computer equipment, and this satisfies the “reasonable particularity” requirement."

It's an interesting case in that passwords are present in DVRs as well. Could some crime witnessed by a defendant's DVR be found hiding behind a password?

Click here to read the whole article.

Enjoy.

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