Key Disclosure and the Fifth Amendment(This is Not Legal Advice.)
Less information is being kept on hard copies, in favor of storing it on a hard drive. With a digital copy quickly becoming the standard, and often the only format of a document/data more and more Key Disclosure cases will arise for various types of documents. This is a review of the Fifth Amendment, and how it has so far been applied in Key Disclosure cases.
KeyDisclosure Laws: (mandatory key disclosure)
Legislation that requires individuals of encrypted data to surrender a copy of the decrypted data, or in some cases the cryptographic key(s) itself to law enforcement.
Fifth Amendment:
"No person … shall be compelled in any criminal case to be a witness against himself."
The self-incrimination clause of the Fifth Amendment has its roots in English common law, and is a measure to prevent what is known as “the cruel trilemma;” a position where the defendant is placed in the position of having to commit perjury and lie to the court, be found in contempt of court for not answering, or self-incriminate.
The Fourteenth Amendment makes the Fifth Amendment applicable to all of the states, and the scope of the Fifth Amendment’s self-incrimination clause was extended with the ruling of Miranda v Arizona to extend outside of
the courtroom in any situation that would result in the curtailment of personal freedom. In Dickerson v United States, the U.S Supreme court determined that the Warren Court had directly derived Miranda from the Fifth Amendment. The Fifth Amendment is not an admission of guilt; a unanimous decision in the case of Ohio v. Reiner in 2001 the US Supreme reaffirmed that one of the Amendment’s “basic functions … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” In their decision, they also add that “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s mouth.” Then in Hoffman v. the United States, it was found that The Fifth does not protect just potential answers to questions that may be enough to support a conviction (the smoking gun) but in fact “embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.”
Possible exception(s) to the Fifth Amendment.
The fifth can only be invoked by the person who would be incriminated (you can’t invoke the Fifth to protect someone else.)
The fifth can only be invoked by people. It doesn’t apply to businesses or corporations.
Immunity can create an exception if the court removes any real danger of self-incrimination the basis for the privilege itself is then removed.
The ability to obtain the evidence a different way.
Foregone conclusion; If law enforcement already has a pretty good idea that the evidence exists and where to find it, the Fifth may not apply.
Fifth Amendment
Key Disclosure Cases
In re Grand Jury Subpoena to Sebastian Bourcher Sebastien Boucher was stopped at the Port of Entry at Derby Line, Vermont on December 17, 2006, during a routine border crossing check. During the search, officers found a laptop that wasn't password protected. An evaluation of the laptop by an agent revealed what was believed to be child pornography. The laptop was shut down and seized, and Boucher was arrested. When the laptop was booted back up to create an image of the drives by a department of corrections investigator, he found that one of the drives (the one with the suspected child pornography) was protected by an encryption and password software that now required the user's password, because the laptop had been shut down. Secret Service Agent Matthew Fasvlo with experience and training in computer forensics testified before a grand jury that access to the encrypted area would be nearly impossible without the password. The grand jury issued a subpoena for Boucher to provide the appropriate access to the drive. Boucher moved to quash the subpoena on the issues that, the act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial” and entitled to Fifth Amendment protection, an act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control, and that a password, like a combination, is in the suspect's mind, and is, therefore, testimonial and beyond the reach of the grand jury subpoena, and to do so would be in violation of his Fifth Amendment rights. The motion to quash the subpoena was granted.
United States v Kirschner
Krischner had already been indicted under three counts of receipt of child pornography, and the government was looking to use a grand jury subarea to acquire additional evidence from an encrypted file on Krishner's hard drive.
The court found that compelling the defendant to divulge the password for the encrypted file would result in "producing specific testimony asserting a fact" which would violate the Fifth Amendment right against self-incrimination.
United States v. Gavegnano
In August of 2004, the FBI in Chancellorsville, Virginia initiated an investigation of Derek F. Gavegnano (who at the time was employed by the National Ground Intelligence Center) after receiving information from US military authorities regarding the discovery of possible child pornography on Gavegano's government-issued computer.
United States v. Fricosu
United States v. Doe
The suspect was subpoenaed by the court to provide his password(s) to decrypt some hard drives that were part of an ongoing police investigation. The suspect did not have a lawyer, and refused to provide the password because it was his 5th amendment not to do so; he also claimed that he had forgotten the password(s). He was offered production immunity, by the prosecution, but still refused to provide the passwords to decrypt the drive(s). He was then found to be in contempt of court and jailed.
When it was appealed to the 11th circuit court, they found that he had a valid privilege against self-incrimination, and that offer of production immunity wasn't enough to see him in contempt.
Less information is being kept on hard copies, in favor of storing it on a hard drive. With a digital copy quickly becoming the standard, and often the only format of a document/data more and more Key Disclosure cases will arise for various types of documents. This is a review of the Fifth Amendment, and how it has so far been applied in Key Disclosure cases.
Key Disclosure Laws: (mandatory key disclosure)
Legislation that requires individuals of encrypted data to surrender a copy of the decrypted data, or in some cases the cryptographic key(s) itself to law enforcement.Fifth Amendment:
"No person … shall be compelled in any criminal case to be a witness against himself."
The self-incrimination clause of the Fifth Amendment has its roots in English common law, and is a measure to prevent what is known as “the cruel trilemma;” a position where the defendant is placed in the position of having to commit perjury and lie to the court, be found in contempt of court for not answering, or self-incriminate.
The Fourteenth Amendment makes the Fifth Amendment applicable to all of the states, and the scope of the Fifth Amendment’s self-incrimination clause was extended with the ruling of Miranda v Arizona to extend outside of
the courtroom in any situation that would result in the curtailment of personal freedom. In Dickerson v United States, the U.S Supreme court determined that the Warren Court had directly derived Miranda from the Fifth Amendment.
The Fifth Amendment is not an admission of guilt; a unanimous decision in the case of Ohio v. Reiner in 2001 the US Supreme reaffirmed that one of the Amendment’s “basic functions … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” In their decision, they also add that “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s mouth.” Then in Hoffman v. the United States, it was found that The Fifth does not protect just potential answers to questions that may be enough to support a conviction (the smoking gun) but in fact “embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.”
Possible exception(s) to the Fifth Amendment.
Key Disclosure Cases
In re Grand Jury Subpoena to Sebastian Bourcher
Sebastien Boucher was stopped at the Port of Entry at Derby Line, Vermont on December 17, 2006, during a routine border crossing check. During the search, officers found a laptop that wasn't password protected. An evaluation of the laptop by an agent revealed what was believed to be child pornography. The laptop was shut down and seized, and Boucher was arrested. When the laptop was booted back up to create an image of the drives by a department of corrections investigator, he found that one of the drives (the one with the suspected child pornography) was protected by an encryption and password software that now required the user's password, because the laptop had been shut down. Secret Service Agent Matthew Fasvlo with experience and training in computer forensics testified before a grand jury that access to the encrypted area would be nearly impossible without the password. The grand jury issued a subpoena for Boucher to provide the appropriate access to the drive.
Boucher moved to quash the subpoena on the issues that, the act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial” and entitled to Fifth Amendment protection, an act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control, and that a password, like a combination, is in the suspect's mind, and is, therefore, testimonial and beyond the reach of the grand jury subpoena, and to do so would be in violation of his Fifth Amendment rights.
The motion to quash the subpoena was granted.
United States v Kirschner
Krischner had already been indicted under three counts of receipt of child pornography, and the government was looking to use a grand jury subarea to acquire additional evidence from an encrypted file on Krishner's hard drive.
The court found that compelling the defendant to divulge the password for the encrypted file would result in "producing specific testimony asserting a fact" which would violate the Fifth Amendment right against self-incrimination.
United States v. Gavegnano
In August of 2004, the FBI in Chancellorsville, Virginia initiated an investigation of Derek F. Gavegnano (who at the time was employed by the National Ground Intelligence Center) after receiving information from US military authorities regarding the discovery of possible child pornography on Gavegano's government-issued computer.
United States v. Fricosu
United States v. Doe
The suspect was subpoenaed by the court to provide his password(s) to decrypt some hard drives that were part of an ongoing police investigation. The suspect did not have a lawyer, and refused to provide the password because it was his 5th amendment not to do so; he also claimed that he had forgotten the password(s). He was offered production immunity, by the prosecution, but still refused to provide the passwords to decrypt the drive(s). He was then found to be in contempt of court and jailed.
When it was appealed to the 11th circuit court, they found that he had a valid privilege against self-incrimination, and that offer of production immunity wasn't enough to see him in contempt.
Sources:
http://www.courtroomstrategy.com/2010/04/on-taking-the-fifth/
https://www.whitehouse.gov/1600/constitution
https://www.eff.org/
http://constitution.findlaw.com/amendment5/annotation07.html
https://kb.osu.edu/dspace/bitstream/handle/1811/64542/OSLJ_V52N1_0223.pdf
United States v. Doe (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011) 607 F.3d 1335 (11th Cir. 2012)
United States v. Gavegnano 305 Fed. Appx. 954 (4th Cir. 2009)
United States v Kirschner 823 F. Supp. 2d 665 (E.D. Mich. 2010)
United States v. Fricosu 2012 U.S. LEXIS 11083 (D. Colo. Jan. 23, 2012)
In re Grand Jury Subpoena to Sebastian Bourcher 2007 U.S. Dist. Lexis 87961 (D Vt. Nov 292007)
2009 U.S. Dist. Lexis 13006 (D. Vt. Feb 19 2009)