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5th Amendment Protects You, Your Hard Drive, 11th Cir. Rules

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By Stephanie Rabiner, Esq. on February 28, 2012 5:03 AM

A child pornography suspect can refuse to decrypt his hard drive on 5th Amendment grounds, according to a new ruling by the 11th Circuit Court of Appeals. That is, unless prosecutors first offer him derivative use immunity, which would virtually preclude a conviction.

Producing unencrypted files would require the suspect to reveal "the contents of his mind" and force him to admit his "knowledge of the existence and location of potentially incriminating files." And if the hard drive does contain child pornography, he would be conceding possession of the prohibited images.

Despite the outcome, the panel's analysis indicates that there may be situations in which the Fifth Amendment does not protect hard drive passwords. The court pointed to the Supreme Court's decision in United States v. Hubbell. It found there to be no 5th Amendment protection when the government has independent knowledge of the contents, location or existence of the requested documents.

The suspect, known only as John Doe, demonstrated that prosecutors were not even able to prove the existence of data on his encrypted hard drive.

This ruling marks the first time an appellate court has applied the 5th Amendment to hard drive passwords. A federal court in Michigan came to the same conclusion in 2010, while federal district judges in Vermont and Colorado have ordered decryption. Though the 10th Circuit had a chance to rule on the Colorado case just last week, it declined to do so for lack of a final order.

If the Fifth Amendment's application to hard drives is of interest to you, check back for an update on that case. A contempt order may be issued soon, which means it will be going back up to the appellate level.

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