Yottabytes: Storage and Disaster Recovery

Feb 23 2012   11:17PM GMT

Suspects May Not Need to Decrypt Storage for Law Enforcement After All

Sharon Fisher Sharon Fisher Profile: Sharon Fisher

Contradicting earlier court actions in other states, the Atlanta-based U.S. Court of Appeals of the 11th Circuit has ruled that a man suspected of holding child pornography on his hard disk drive doesn’t have to reveal the necessary code to decrypt it for law enforcement, saying it violates his Fifth Amendment protection against self-incrimination.

In comparison, in January a woman suspected of bank fraud was ordered to give up her password by a U.S. District judge.

The issue had come down to a question of what analogy to use for a data encryption device. “Is a computer password like a key to a lockbox, as the government argues? Or is it akin to a combination to a safe, as Fricosu’s attorneys say? While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the “expression of the contents of an individual’s mind” — is.”

While the Colorado judge had decided it was more like a key, apparently the 11th Circuit decided it was more like a combination.

There was one other case, also involving child pornography, but in that case, prosecutors had some evidence that the disk drive actually contained pornograpy, wrote the Wall Street Journal.

While organizations such as the Electronic Frontier Foundation supported defendants, prosecutors said that doing so would mean that all criminals would have to do is encrypt their hard drive and they’d be protected from law enforcement.

What this new result means is that the whole issue is likely to end up in the Supreme Court at some point, which will release a final ruling and settle the issue once and for all.

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