Decrypting Your Fifth Amendment Right

A few weeks ago I wrote "Ramona Fricosu and Your Privacy." 

Ramona, it seems, had a password that decrypted her laptop that the court wanted the files from.  Ramona recently appealed to the court have her case dropped because revealing the password would be a violation of her Fifth Amendment right against self incrimination.

Ramona recently lost (see this).

However, Ramona lost because it was the wrong time in her case to make such a claim.  Instead she must wait until her case is won or lost (though the case may change based on another defendant supplying passwords) and file an appeal.

However, the principle was decided, I guess in Ramona's ultimate favor, in a separate United States Court of Appeals for the Eleventh Circuit decision here.   I suspect that this will go to the Supreme Court ultimately - though the result will not change.

While a different case from Ramona's altogether the principles are the same.

The details are as follows.

"John Doe" had a laptop on which the government suspect Mr. Doe had stored child pornography.  (Unlike Fricosu's case where the laptop was known through other means to contain documents related to Fricosu's guilt.)

Suspected is the first key.

In deciding the case the Appeals Court relied on two cases.

The first is Fisher v. United States.  In Fisher the case revolved around a defendant supplying documents requested by the IRS.

The principle, it seems, is whether or not the governments request for information from the suspect that it does not already know: "The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons “no constitutional rights are touched. The question is not of testimony but of surrender.”"

The second is United States v. Hubbell.  This harkens back to the Presidency of Bill Clinton and his (and his wife's relationship) to the "Whitewater Development Corporation."

In this case the government asked Hubbell to turn over eleven categories of documents.  However, in this case the government did not know what was in the documents in advance.  In Hubbell the Supreme Court found that first "the Fifth Amendment privilege is not triggered where the Government merely compels some physical act ...[where the]... individual is not called upon to make use of the contents of his or her mind." 

Secondly, "... under the “foregone conclusion” doctrine, 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.”"

What does this mean?

It would seem that as long as the government does not know or merely suspects what your encrypted material is through other means, i.e., you're not simply surrendering what they already know about, your encrypted materials are "safe" in that surrendering them through the act of decryption would be the equivalent of violating your Fifth Amendment's rights.

The government could, on the other hand, simply request the encrypted material and, for example, guess at the password, so best not use passwords like "1234" (see this).

Ms. Ficosu's case aside I feel that these are the correct conclusions.

However, this is probably an very serious turn of events for "government" and for "us."

This means, for example, that if you put everything on your hard drive, tell no one about what its contents are, and encrypt the drive then government agents knocking on you door will not be able to access the information unless you provide it to them.

So theoretically someone could create, say, a ponzi scheme, like Madoff, but simply emit statements to investors and never divulge the process or details which were encrypted.

So long as you violated no other law (a stretch admittedly) then you would be very difficult to prosecute.  Clearly the government could separately piece together your actions, such as by using third party input such as bank statements, and claim that decryption of the Ponzi scheme is merely a "surrender" of what they already know.

For whistle-blowers, on the other hand, things might be improved by this decision.  For example, I take information from a wrong-doer, encrypt it, tell no one, but "blow the whistle" (declare so-and-so guilty of X).  So long as I only declare the "conclusion" from the encrypted data I think it would not be available to the courts...

For "us" this means that in order to prevent scenarios such as the ones I just described yet more laws will be passed criminalizing encryption, withholding information, and so on.

More laws.

More nonsense.

Less freedom.