- By David Kravets
- 06.04.13
If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?
That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues of the wired era.”
Shellow is making a novel argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government. That’s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.
“Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data,” Shellow wrote in a court filing. (.pdf)
In a telephone interview Monday, she said “this area is a new way of thinking about encryption.”
UPDATE: A federal judge this afternoon halted the decryption order, and demanded further briefing on the constitutional implications.
Though rare, decryption orders are likely to become more common as the public slowly embraces a technology that comes standard even on Apple computers. Such orders have never squarely been addressed by the Supreme Court, despite conflicting opinions in the lower courts.
The latest decryption flap concerns Jeffrey Feldman, who federal authorities believe downloaded child pornography on the file-sharing e-Donkey network. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by today.
Feldman has refused, citing the Fifth Amendment. A federal judge could find him in contempt as early as today and jail him pending his compliance.
The magistrate in the case stepped aside Monday after Shellow argued that only U.S. district court judges, not magistrates, have the legal power to issue decryption orders. As of now, the new judge in the case has not decided whether to uphold the magistrate’s order.
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