Fifth Amendment

Man Ordered To Decrypt Files or Go to Jail

Self-incrimination, anybody?


If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?

That's the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant's attorney, Robin Shellow of Milwaukee, said it's "one of the most important constitutional issues of the wired era."

Shellow is making a novel argument that the federal magistrate's decryption order is akin to forcing her client to build a case for the government. That's because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.

"Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data," Shellow wrote in a court filing.

NEXT: With Police Beating Posted to YouTube, Chicago Seeks a Settlement

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  1. How is there even an ounce of doubt that this violates the 5th Amendment? Can you be forced to testify against yourself as to the location of the dead body in a murder case? Can you be forced to testify against yourself as to the combination to a safe containing the murder weapon? I think both of these would be “no” so why should you have to testify as to the location of evidence contained on an encrypted hard drive?

    Being forced to divulge information (testifying) which will incriminate yourself is against the 5th Amendment, it shouldn’t matter if that information is a password or any other contents of the defendant’s mind.

  2. And they decrypted enough of the drive to have the evidence they need, so it seems doubly abusive of the Constitution that the government is forcing the issue with this case.

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