The Electronic Frontier Foundation always gets involved in interesting cases, and Leon Gelfgatt’s is no exception:<\/p>\n
Mr. Gelfgatt was arrested and charged with forgery. Then the government got a search warrant and seized his electronics as evidence. But he had encrypted his files, and the government couldn’t break the encryption. So they asked a judge to order Gelfgatt to decrypt the devices. Is this legal? The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself . . .”<\/strong> The EFF filed a brief arguing that ordering a person to decrypt a computer file violates the Fifth Amendment.<\/p>\n “Pleading the Fifth” has a rich history in the United States. This amendment gets a lot of flack, for giving criminals a legal means to avoid giving information, but it is an instrumental safeguard against government overreach in criminal cases.<\/strong><\/p>\n The question is whether decrypting a file is “testimonial,\u201d (i.e. does decrypting a file count as providing \u201ctestimony\u201d? This question is important because the Fifth Amendment does not prohibit the government from forcing a person to commit acts that could incriminate himself, but only from “be[ing] a witness” against himself. “Witnessing” involves “testimony.” So the question is whether providing the decryption codes to files is “testimony.”<\/p>\n It is already established that it is not \u201ctestimony\u201d to do force a defendant to do something that does not make the defendant show what\u2019s in his mind. So, for example, it is perfectly fine for the government to force a defendant to give a blood or DNA sample. This could of course incriminate the person, but it’s not testimony, so it does not violate the Fifth Amendment.<\/p>\n The EFF argues that forcing a defendant to decrypt files is “testimonial” for the following reasons:<\/p>\n 1) It uses the contents of the defendant’s mind.<\/p>\n 2) It reveals the defendant’s access to and control over the drives.<\/p>\n 3) It requires the defendant to transform a whole mess of nonsense (the encrypted file) into a whole bunch of sensible data that would not otherwise exist.<\/p>\n