By Joshua A. EngelAll Articles, Law Technology News, April 11, 2012
The encryption of documents and records by businesses and consumers has grown in recent years. This is especially true as more records are stored in the cloud.
Encrypted data is accessible only through the use of a password or encryption key, and this encryption raises several questions. What happens when the government wants to read encrypted documents? Can the government make you turn over your password or encryption key? Does the right to remain silent or the privilege against self-incrimination provide any protection? Some believe that the answer to this question may be one of the most important technology-related legal questions of the next decade.
In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects to provide passwords and encryption keys despite claims of Fifth Amendment privilege by witnesses and suspects. This issue has appeared infrequently in courts. However, a decision last month by the U.S. Court of Appeals for the Eleventh Circuit, United States v. John Doe, has started to provide some guidance. The court concluded that the Fifth Amendment privilege applied because the provision of this information is essentially an admission that the person had possession and control over, and access to, the computer, files, or data. <READ MORE>