Thursday, January 26, 2012

Should the 5th amendment cover your encrypted data or not?

Before I start let me tell you what the 5th amendment is. It protects you from basically incriminating yourself. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.

And encryption is the process of transforming information (referred to as plaintext) using an algorithm (called a cipher) to make it unreadable to anyone except those possessing special knowledge, usually referred to as a key. The result of the process is encrypted information.

Example is "Hi how are you" becomes "*&yhN8ob5re7"

OK moving on.

In Colorado a Judge ordered a woman named Ramona Fricosu (being investigated for mortgage scam) to decrypt her files to allow evidence to be gathered to support the accusations shes facing.

Doesn't that sound like she would be incriminating herself? Being made to decrypt the files so it can be used against her? Sounds like a violation of the 5th amendment to me.

But not according to Judge Robert Blackburn

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.”


So what are your opinions? Should you be forced to give up your passwords or be made to decrypt information that may be used to incriminate you? Currently there is no law saying you have to even if asked.

This also brings up some other issues. What is you claim to of forgotten your password? You say it was so long you had to keep it on a piece of paper and its now lost. What then? Can they just assume you are lying? Can they use it against you? What if you use "hidden volumes" to hide the real encrypted information? Those cant be proved they exist, just speculated that they might.

To many issues come into play here.

And if anyone is wondering how to encrypt their laptops or external drives or folders etc here is my post about it:

ACTA - Worse then SOPA/PIPA

How to bypass Internet Censorship SOPA/ACTA


  1. i saw this case. The files were known to be on the computer. I suppose it'd be the same as having evidence somewhere in your house that would need a search warrant. You'd need to facilitate the search and comply with the warrant. It's a bit looser than that, but not quite self incrimination. So I would reluctantly say no, the 5th amendment shouldn't cover encrypted files.

  2. If there's suspicion that these files are a deciding factor for the case I think she would have to decrypt it. As Leon said, it should be viewed as any other evidence and require a warrant.

  3. Yeah, that's dumb. I'd just say I 'forgot' the password. Let them crack it themselves.

  4. I agree with the above comment. If given a warrant with reasonable cause to search your computer and encrypted files, then go right ahead.

  5. thats stupid, i would have smashed the HDD instead of encrypting it. borderline-criminals

  6. i think that it should protect encrypted data but just to be safe never even save incriminating subject material and then there is no evidence. :) its just better that way

  7. Needs probable cause not just suspicion

  8. Interesting post. Like a lot of other issues, it certainly opens up questions about technology and its role in the legal system.

    Visiting from Lynda's BBQ!

  9. Sounds like one of those things that you would need a search warrant for. Like if you had a safe in your house the cops can't force you to open it they would need a search warrant first.

  10. At first I thought "no way" but then I don't understand the law when it comes to search warrants and other ins and outs. I am a bit ignorant when it comes to just exactly what the 5th ammendment covers because wouldn't unlocking a safe and letting 'them' search the contents also be incriminating... thus the search warrant. Too much brain stimulation here. :)

  11. God damn internet censorship! Frankly if any of this bills do pass I can guarantee there will be a way to easily by-pass these within the hour!

  12. Great post, mate. I think that without a warrant they have no right to anything. But if they get a warrant then how is looking in your drawers and under your bed different from going through your e-mail?

  13. This goes beyond internet censorship.. Every day were pushed into accepting more and more draconian laws.