Porn, Border and the Fifth Amendment
CNet News is reporting that a District Court judge in Vermont has issued an order requiring a defendant to decrypt his computer for a grand jury. The prosecution believes that his drive contains child pornography, but due to the PGP encryption they were unable to view the files.
The case raises a Fifth Amendment question: whether decrypting the computer would constitute being compelled to be a witness. It has also been appealed to the Second Circuit for review of the decision.
My personal feeling is that the Second Circuit will find that providing the password is more like providing the key to a safe deposit box than like testifying in court or speaking to law enforcement officers. The prosecution already had the computer, which was seized as the defendant entered the country from Canada. All they need now is to be able to read it. I can’t imagine the Second Circuit will want to issue a ruling that would teach criminals that all they have to do to keep their documents secret would be to encrypt them and refuse to disclose the decrypting passphrase.
On the other hand, the ACLU has come out against the decision. However, they frame the question as one of discovery (“It’s not the same thing as asking him to turn over the Xeroxed copy of a document.”) and not of access.