The 11th Circuit recently held that a suspect need not provide government prosecutors with computer passwords to help them gather evidence. At the same time, a Colorado District Court ordered a fraud defendant to unlock hers. With advancements in computer technology and encryption software, higher courts may have to settle this issue in the near future.
Just a few years ago, forensic computer analysts used special software and equipment, such as Encase Software, to "plug-in" to a suspect's hard drive while executing a search warrant and access or copy any evidence they needed. Now, advanced encryption technologies can prevent access to incriminating information by "splitting" the hard-drive and blocking forensic efforts to those segmented portions. This encryption has left prosecutors without ample evidence to proceed in some high profile cases, and courts have been asked to order the release of computer passwords.
In Florida, the 11th Circuit recently decided the issue in favor of the individual. The Court viewed compelled disclosure of passwords as forced testimony, which is protected by the Fifth Amendment's right against self-incrimination. The Court, however, limited their decision to cases where discovery of incriminating evidence was not a foregone conclusion; meaning, the rule only applies where the government cannot identify or link any incriminating data to the suspect. The rule applied in this case because there was no proof that incriminating data existed on the hard drive, or that the suspect had access to it.
Conversely, the Colorado case involved mortgage fraud defendants, who were linked to the computer and evidence on it during wire-tapped phone calls. Here, the defendant was required to unlock her computer for the prosecutors; she refused to do so, and the 10th Circuit declined hearing her emergency appeal. Subsequently, the defendant's ex-husband and co-defendant provided the government with a list of possible passwords, and they were able to open the computer anyway.
So what is the law then? Can a court require a suspect to disclose his passwords and enable the government to access evidence for use against him at trial? At its core, this act seems like compelling someone to testify against themselves, whether evidence was a foregone conclusion or not. I strain to see the difference between ordering a defendant to disclose passwords or unlock a computer, and forcing them to get on the witness stand under oath and announce their passwords in open court.
Law Clerk Rosie Escobar Brown wrote this blog post. Price Benowitz LLP is a criminal defense and personal injury law firm founded by respected criminal defense lawyer David Benowitz.