Child Porn Suspect Can Refuse to Decrypt Hard Drive: 11th Cir

The government can't force you to decrypt your hard drive -- unless they give you complete immunity, that is.

In a first-of-its-kind ruling in February, the 11th Circuit reversed a lower court order requiring a child pornography suspect to decrypt his hard drives. The man, known only as John Doe, claimed the order violated his Fifth Amendment privilege against self-incrimination.

The court agreed, finding that decryption would be akin to him testifying against himself.

The panel relied primarily on Fisher v. United States and United States v. Hubbell. In Fisher, the Supreme Court applied the Fifth Amendment privilege to the "act of production" -- court orders requiring an individual to produce relevant documents. An individual can invoke the Fifth Amendment if "conceding the existence, possession ... and authenticity of the documents tend[s] to incriminate" him.

The Supreme Court limited this statement in Hubbell. The Fifth Amendment does not apply to production when the government has "knowledge of the contents, location or existence of the documents from an" outside source.

In the case of John Doe, the government was asking him to produce the "contents of his mind," which may give prosecutors access to incriminating documents. If the hard drives do contain child pornography, he would be acknowledging that he does in fact possess illegal photos. Decrypting the drives would therefore be self-incriminating.

Unfortunately for prosecutors, they could not rely on the Hubbell exception. They don't know, and cannot verify, the contents of the hard drives.

While this is a very notable decision, two lower courts have disagreed with this analysis. Suspects may be able to refuse to decrypt a hard drive in the 11th Circuit, but they may be forced to elsewhere.

Related Resources:

• Eleventh Circuit: Forced Decryption is Self-Incrimination (FindLaw's 11th Circuit Blog)
• Self-Incrimination (FindLaw)
• Can Your Laptop Plead the Fifth Amendment? (FindLaw's Law & Daily Life)