Does the Fifth Amendment Protect Your Encryption Key?

The questions about the ability of the government to obtain information from cell phones and cloud computing providers keep changing as fast as technology changes. Over the last few years, courts have been struggling with the question of when and how police can search cell phones. For example, courts have provided conflicting answers to the question of whether the police may search the contents of a cell phone found on a person arrested for any criminal offense, including minor traffic violations.

In response to these decisions and generalized privacy concerns, people are increasingly using passwords and encryption to protect their phones and data. But this leads to a follow-up question: can law enforcement compel a person to provide a password or encryption key?

The Occupy Wall Street protestors have directly confronted this issue. The Electronic Frontier Foundation published a "Cell Phone Guide for Occupy Wall Street Protesters (and Everyone Else)." In this guide, the EFF recommended that people password protect their phones and encrypt the data. But the guide does not provide a definitive answer about what to do if the police demand the password or encryption key. Instead, the guide merely says, "If the police ask for the password to your electronic device, you can politely refuse to provide it and ask to speak to your lawyer."

Any answer begins with the right to remain silent under the Fifth Amendment. The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature. See Schmerber v. California, 384 U.S. 757, 761 (1966).

In cases starting to wind through state and federal courts, the government has sought to compel suspects and defendants to provide passwords and encryption keys. For example, in a Colorado case involving allegations of real estate fraud, the government seized several computers after executing search warrants at the defendant's residence. The government obtained an additional search warrant to search a laptop, but was unable to read the encrypted contents. The government then sought an order compelling the defendant to provide or enter the password.

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Source: law.com
By: Joshua A. Engel