In last week’s posts, we looked at how the concept of “constructive possession” can be applied in criminal cases involving alleged computer crimes. In this post, we will look at a different federal case that at first sounds somewhat similar. But this case does not involve the possession of the data on the computer. Instead, it asks whether a criminal suspect must decrypt files on his computer to make them available to criminal investigators.

Last week, the U.S. Court of Appeals of the 11th Circuit in Atlanta ruled that the Fifth Amendment prohibition on self-incrimination extended to a suspect’s refusal to decrypt the data on his laptop computer and external hard drives. The court reasoned that requiring the man to disclose his passwords or encryption would be tantamount to testifying against himself.

The court explained that in order for the Fifth Amendment protection to apply, three factors must be demonstrated: (1) compulsion, (2) a testimonial communication or act and (3) incrimination. The compulsion and incrimination factors were not in dispute. The issue was whether providing the password was “testimonial.”

The physical act of turning over papers or data is not generally testimonial, but when the suspect is required to provide “the contents of his own mind” in the form of a combination or password, it may be considered testimonial. In this case, the government was unable to show that any files even existed on the encrypted drive, and assuming the files do exist, that the suspect is even capable of decrypting them.

Source: Wall Street Journal, “Court Ruling Protects Suspect’s Hard Drives,” Joe Palazzolo, Feb. 24, 2012