Forcing Defendant to Decrypt Laptop Does Not Violate Fifth Amendment?

Lora Bentley

While we're talking about judicial decisions that impact technology ... a judge in Colorado has decided that a defendant in a mortgage fraud case cannot use the Fifth Amendment protection against self-incrimination to avoid decrypting her laptop so that police can search it for evidence.


According to Ars Technica, the court decided asking the defendant to decrypt her laptop is different than asking the defendant to give up the password so that someone else could decrypt it. Because the latter is asking the defendant to disclose the "contents of her mind," it is prohibited by the Fifth Amendment. The former is not. Her attorney plans to appeal.


The attorney, Phil Dubois, told CNET News:

I think it's a matter of national importance. It should not be treated as though it's just another day in Fourth Amendment litigation.

Moreover, if his client can't decrypt the laptop, he said they will simply explain that to the court.

[T]he law is fairly clear that people cannot be punished for failure to do things they are unable to do

As CNET's Declan McCullagh points out, the legal community has been divided for years as to whether the Fifth Amendment protection should extend to passcodes. As yet, the U.S. Supreme Court has not weighed in on the matter.

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