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Does being forced to decrypt a file violate the Fifth Amendment?

That’s the argument the Electronic Frontier Foundation is making in a new brief.


Patrick Howell O'Neill


Does being forced to decrypt a file violate your Fifth Amendment rights against self-incrimination?

That’s the case made by the Electronic Frontier Foundation (EFF) in a new brief filed in the case of Leon Gelgatt. The 49-year-old Marblehead, Mass. attorney, was indicted in 2010 in a $1.3 million mortgage fraud scam. The judge denied the government’s attempt to compel Gelfgatt to decrypt the hard drive that law enforcement had seized.

The case is now in appeal before the Massachusetts Supreme Judicial Court. The EFF, along with the American Civil Liberties Union, filed an amicus brief in the case.

“Our brief argues that the lower court got it right. The Fifth Amendment protects a person from being forced to reveal the ‘contents of his mind’ to the government, allowing law enforcement to learn facts it didn’t already know,” the brief, which we’ve copied below, reads.

“When it comes to compelled decryption, the Fifth Amendment clearly applies because the government would be learning new facts beyond simply the encryption key. By forcing Gelfgatt to translate the encrypted data it cannot read into a readable format, it would be learning what the unencrypted data was (and whether any data existed). Plus, the government would learn perhaps the most crucial of facts: that Gelfgatt had access to and dominion and control of files on the devices.”

The government, on the other hand, argues that providing file decryption is like providing a key to a safe, reports ThreatPost, and thus not constitutionally protected. The case will begin Monday, Nov. 5.

H/T Boing Boing Image Dennis Von Zuijlekom/Flickrj


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