U.S. v Doe (In re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011)

The 11th U.S. Circuit Court of Appeals found a Florida man’s constitutional rights were violated when he was imprisoned for refusing to decrypt data on several devices.  This was the first time an appellate court has ruled the 5th Amendment protects forced decryption – a major victory for constitutional rights in the digital age.  EFF filed an amicus brief in this case.

In this case, titled United States v. Doe, FBI agents seized two laptops and five external hard drives from a man they were investigating, but were unable to access encrypted data they believed was stored on the devices via an encryption program called TrueCrypt.  When a grand jury ordered the man to produce the unencrypted contents of the drives, he invoked his Fifth Amendment privilege against self-incrimination and refused to do so. The court held him in contempt and sent him to jail.  EFF argued that the man had a valid Fifth Amendment privilege against self-incrimination, and the government’s attempt to force him to decrypt the data was unconstitutional.  The 11th U.S. Circuit Court of Appeals agreed, ruling that the act of decrypting data is testimonial and therefore protected by the Fifth Amendment.  Furthermore, the government’s limited offer of immunity in this case was insufficient to protect his constitutional right because it did not extend to the government’s use of the decrypted data as evidence against him in a prosecution.

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