I remember reading about this story some time back. It’s quite the legal conundrum and has multiple facets which will set precedent for years to come which makes it important to get right the first time.
(Wired) — 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
The latest decryption flap concerns Jeffrey Feldman, who federal authorities believe downloaded child pornography on the file-sharing e-Donkey network. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by today.
Feldman has refused, citing the Fifth Amendment. A federal judge could find him in contempt as early as today and jail him pending his compliance.
It breaks my heart to have to side with Feldman who is accused of possessing child pornography. Of course he is innocent until proven guilty, but if the accusations are true, he deserves a special kind of punishment. I have to agree that requiring an individual to decrypt or provide passwords for computers seems to be unconstitutional.
As the above article notes, the State is requiring the defendant to help discover and collect evidence to be used against himself. How is this different from the State threatening a suspected murderer reveal the location of the murder weapon (which is the linchpin of the entire case) or else he be jailed until he do so?
The most difficult part of this kind of case is putting aside the nature of the charges. The more severe the crime the more likely we are to justify to ourselves that bending the rules is OK. However, this is a case of someone who allegedly committed moral evils and no one’s life is immediately at stake if Feldman doesn’t comply.
Where do you stand on the principle of the government requiring a defendant to decrypt his electronic devices for the prime purpose of using its contents as evidence to prosecute him? Or should the government be required to decrypt the devices on its own if it wishes to use the contents as evidence?