Today, I’ve decided to tackle a few issues. First, there is a rather funny case out of Massachusetts where a cyclist riding in the middle of a lane claimed riding in this manner is protected by the First Amendment’s right to freedom of expression. The Supreme Court doesn’t agree with this cyclist, stating that the context of the act must convey a larger message. In other words, an act by itself does not constitute free speech unless that act communicates a message. I guess at the end of the day, we can’t fault the cyclist in this case for being creative.
The second issue is far more serious. Laptop and hard drive decryption has recently emerged as a hot topic in criminal law (at least among lawyers like myself that care about how to account for such technology). There’s an unsettled issue that arises whenever the police demand that an individual decrypt their hard drive: do such requests violate the Fifth Amendment right against self incrimination? This came to mind due to a recent case against a man in Wisconsin accused of receiving and possessing child pornography. The man refused to supply his password after police found themselves unable to decrypt the hard drives themselves, and got the court to issue an order to decrypt the hard drives for them. The police managed to decrypt the hard drive later, rendering the issue moot and preventing the judge from making a ruling.
While courts haven’t had to answer this issues, I’m kind of curious. Does requiring an individual to supply a password for their encrypted hard drive constitute self incrimination? Normally this right allows a defendant to choose not to take the stand during a criminal trial or answer questions regarding their involvement in criminal matters. This includes answering questions where the context of the question (such as where it was asked) or the implications of the question lead the individual to believe that answering or explaining why they aren’t answering would lead to worse results than simply answering in the first place.
From that perspective, there’s merit to the idea that these password requests represent self-incrimination. If the content on the hard drive is potentially incriminating, then providing the password would lead the individual to incriminate himself and thus violate the Fifth Amendment (in theory at least). A judge would have to decide that responding to these password requests represents testimony (the sort of action that would make a person “a witness against themselves” to paraphrase the Constitution) or a link in a chain that leads to the defendant providing incriminating evidence. That’s where the debate gets potentially thorny. Providing the password does result in a statement that potentially leads to the defendant incriminating him or herself (and is a statement of a fact), but is likely not incriminating on its own. Given that the purpose of the Self Incrimination Clause is to mitigate police coercion of suspects, I would personally lean towards viewing such requests as a violation. This is especially true in light of the wording of Supreme Court’s test: the individual must fear the repercussions of any answer to the question, even if the answer only provides part of the evidence (Hoffman v. United States). Revealing the password is potentially injurious, which should support a finding of privilege when dealing with a TrueCrypt encrypted hard drive.
This issue should be an interesting one to follow over the next few years. While there haven’t been any high level cases dealing with the compelled providing of passwords, the likelihood of courts arriving at different conclusions should mean that the Supreme Court will step in eventually. In the meantime, enjoy your weekend.