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Can Your Laptop Plead the Fifth? “Testimony” in a Digital Age

The Electronic Frontier Foundation always gets involved in interesting cases, and Leon Gelfgatt’s is no exception:

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 . . .” The EFF filed a brief arguing that ordering a person to decrypt a computer file violates the Fifth Amendment.

“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.

The question is whether decrypting a file is “testimonial,” (i.e. does decrypting a file count as providing “testimony”? 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.”

It is already established that it is not “testimony” to do force a defendant to do something that does not make the defendant show what’s 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.

The EFF argues that forcing a defendant to decrypt files is “testimonial” for the following reasons:

1) It uses the contents of the defendant’s mind.

2) It reveals the defendant’s access to and control over the drives.

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.

That last one is the key, and the EFF’s original argument. Encryption is not, they argue, like a safe with information inside of it. Instead, encryption actually destroys the data, replacing it with a big mess of nonsense. So the data that the government is looking for does not actually exist. By forcing the defendant to decrypt, the government is forcing the defendant to create a bunch of data that did not exist. That creation is testimony.

Interesting argument. I’ll be following this case to see what happens.

In the meantime, please remember, there are good reasons to encrypt your data other than worrying about getting arrested. When your laptop gets stolen, you’ll be glad that your children’s social security numbers and all your credit card info is not available to the criminals who stole it.