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  • R. Scott Kimsey

Forced Hard Drive Decryption Does Not Violate the 5th Amendment in Massachusetts

The Fifth Amendment protects an individual's right against self-incrimination. Whether or not forcing someone to decrypt a hard drive violates this right is something currently being debated in the courts, and different courts are reaching different conclusions. In its 2012 in U.S. v. Doe, the 11th Circuit found that forced decryption does violates the Fifth Amendment. The court said, in part:

"...(1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions."

Yesterday, the Massachusetts Supreme Judicial Court (MSJC) came to the opposite conclusion. In a case dealing with alleged mortgage fraud, the MSJC ruled that forced decryption does not violate the Fifth Amendment, at least where the contents of the hard drive are "foregone conclusions." In other words, by decrypting the hard drive, the defendant would only be telling the government what it already knows.

As one might expect, that interpretation is being hotly debated by advocates of civil liberties and privacy rights. San Francisco attorney Marcia Hoffman told Ars Technica: "The police think they’re going to find mortgage fraud, but they don’t know what they’re going to find, and they don’t know where that supposed evidence is. That is not a foregone conclusion. They don’t seem to have a good sense. This is a fishing expedition.” The ACLU has also taken a dim view of the decision.

Ultimately, this issue will be decided by the Supreme Court. They recently decided in favor of privacy, ruling that search of a smart phone requires a warrant, but it isn't at all certain that they'll come out in favor of an expansive reading of the Fifth Amendment as it applies to decryption.

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