Keeping Up With The Federal Courts
Requires some diligence. I wrote a piece for our firm’s InfoLaw Newsletter just last week in which I discussed a Colorado federal trial decision in which a judge ordered a criminal defendant to provide code to open an encrypted hard drive. The Colorado based judge ruled that doing so would not violate the Fifth Amendment guarantee against self incrimination. Just last week, the 10th Circuit Court of Appeals refused to hear an emergency appeal of the issue. But the very next day, the federal court of appeals for the Eleventh Circuit, based in Atlanta, came to the opposite conclusion. It found that:
[T]he decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized to a physical act that would be non-testimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control and access to the encrypted portions of the drives; and of his capability to decrypt the files.
So what does that mean? Possibly that the United States Supreme Court will be asked to resolve the issue. When there is “a split in the circuits” it is the Supreme Court’s job to resolve it. Given the Supreme Court’s recent ruling that warrantless GPS surveillance is unconstitutional, it will be interesting to see how it reacts here.