EFF: being forced to decrypt your files violates the Fifth

The Electronic Frontier Foundation has filed a brief in the case of Leon Gelfgatt, arguing that forcing the accused to decrypt a file violates the Fifth Amendment, which makes you secure against self-incrimination.

Our brief argues that the lower court got it right. The Fifth Amendment protects a person from being forced to reveal the "contents of his mind" to the government, allowing law enforcement to learn facts it didn't already know. When it comes to compelled decryption, the Fifth Amendment clearly applies because the government would be learning new facts beyond simply the encryption key. By forcing Gelfgatt to translate the encrypted data it cannot read into a readable format, it would be learning what the unencrypted data was (and whether any data existed). Plus, the government would learn perhaps the most crucial of facts: that Gelfgatt had access to and dominion and control of files on the devices.

It's not the first time we've made this argument in court; we've filed amicus briefs in other cases involving forced decryption, and won big last year in the Eleventh Circuit Court of Appeals, which agreed with us that the act of decrypting a computer is protected by the Fifth Amendment.

At a time when the recent public disclosures have suggested the government has been undermining cryptography, we hope the court understands the importance of having strong technological safeguards to protect our privacy and find that our constitutional protections prohibit what the government is trying to do here.

Fifth Amendment Prohibits Compelled Decryption, New EFF Brief Argues

Notable Replies

  1. IMB says:

    I have been saying this about the surveillance in general. The NSA is handing off info to other LE agencies, without warrant, and they can receive incriminating evidence without actively investigating with probable cause.

  2. Here is something everyone can do to make a difference: get in the habit of creating and keeping randomly-generated data files, and make it known that you subscribe to this practice (i.e. state that you do so in web pages or forums that can be produced in court if ever needed). If the question ever comes up as to why you do this, you can say, "Because it creates a world where the difference between garbage data and encrypted data is known only to the person who owns such files, which is exactly how it should be".

    I think this notion should be made into a widespread, well-publicized movement, with a tagline and EFF advocacy and the whole works.

  3. I mean save piles of garbage on your computer, and make public record of the fact that you do so (in webpages or forums, telling people, etc). When police grab your computer and find a file on it that they demand the keys to, you say, "That's a garbage file. I keep garbage files. As I've long made a practice of. Look it up."

  4. bwv812 says:

    I think one would really have to know the case and its facts before one could comment on exactly what's being done and the legal justification for it.

    Generally, however, the 5th Amendment applies mainly to: custodial interrogations where the government reasonably expects that the answers might be incriminating (typically post-arrest interrogations); and testimony under oath. The 5th was meant to eliminate forced testimony, and at the time it was written testimony under torture was the main concern. Later-charged suspects who said incriminating things before an investigation even began wouldn't seem to be protected under the 5th, since nobody was forcing them to make the statements and the government was not expecting that person to say something incriminating.

    Also note that the 5th Amendment right is a right that has to be asserted. If you voluntarily make incriminating statements without a lawyer (after being read your Miranda if you are in custody, or utter them under oath even without being Mirandized), those statements can be used against you.

    If I tell you that I'm going to commit a crime, and you record this conversation and go to the police, I don't have any 5th amendment protection against that evidence. But the case you're describing has to be substantially different than this if it is newsworthy in any way.

  5. yep good old:
    cat /dev/random > file.bin
    leave that running for a few days while you go off and do other things (it can only random while you have entropy) and soon you will have a huge random file. if it's too big cut some off.

    but i wouldn't bother lying and saying it's garbage, i would say i keep garbage files and leave it at that...they have to prove whether the file is encrypted or garbage.

    course there is always the analog hack:

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