The government may force phone decryption

The Fifth Amendment protects individuals from being forced to be a witness against themselves. This right, and the rights against unlawful search and seizure, are facing challenges in the digital age. Court cases have complicated the issue of whether the government can force decryption of an electronic device. This can be significant in a criminal appeal because of the treasure trove of personal information stored in these devices.

Previously, courts could compel a person to turn over tangible items, such as a key to open a vault. However, it could not make a person turn over information they held in their mind, such as a safe combination. It also had the means to gain access with jackhammers or drills once it obtained a warrant. By comparison, however, law enforcement is unable to decrypt some electronic devices.

Some courts have forced decryption under the foregone conclusion doctrine that forces disclosure of information under the Fifth Amendment when law enforcement already knows the contents of an encrypted device and the suspect is not furnishing new information. In a Pennsylvania child pornography case, for example, a former police officer was imprisoned for years because he refused to decrypt hard drives even after investigators discovered that the file hashes on those drives matched the hashes of the pornography files.

A 2014 Massachusetts case was less clear. A court ordered a man to decrypt his computer because police already determined that the computer belonged to him and he possessed the decryption key. The court ruled that decryption of its contents would not reveal anything new to law enforcement.

Earlier this month, a federal magistrate in California confused this issue. She denied a search warrant for digital devices and the authority to make a person press a finger or use other biometric features such as facial or iris recognition to unlock the devices so the search may be performed. She ruled that utilizing a biometric feature for decryption is not like submitting a fingerprint or DNA swab. The judge compared submission of these biometric features to a situation in which a person was unlawfully compelled to provide a passcode or combination to a safe.

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The Nolan Law Firm