A man accused of housing child pornography on multiple hard drives will not be forced to give authorities access, after a Wisconsin judge rules that doing so would violate his 5th Amendment rights against self-incrimination.
The case involves Jeffrey Feldman, a software engineer with a degree in computer science from University of Wisconsin-Madison. Suspected of possessing child pornography, FBI agents raided his home and seized 16 storage devices, 9 of which were encrypted.
The FBI filed an order to compel Feldman to decrypt his devices, and order which has been shot down by Judge William Callahan.
“This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity” – namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination,” said Judge William E. Callahan Jr.
The Judge concedes that the state knows the encrypted devices contain data, and that they already know the names of the files and that they probably exist on said devices. He also concedes that the state has shown that Feldman is surely capable of decrypting the devices.
But the following question remains: Is it reasonably clear, in the absence of compelled decryption, that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu, here, Feldman has not admitted access and control.
It’s clear that the Judge thinks that this is a very tricky case, and his decision toes the line.
In the end, however, the conclusion is that the state simply doesn’t know enough already about the contents of the drives and the defendant’s ties to them to compel him to access them.
An attorney with the Electronic Frontier Foundation told Wired that “this isn’t just about child porn. It’s about anything on your computer that prosecutors or government officials may want.”
Don’t think that encrypting your data shields you from the long reach of the law, however. Not only is encryption less than 100% effective, but this is simply one ruling. In the past, we’ve seen courts compel decryption – for instance in the aforementioned Boucher case, where a man was forced to unlock his laptop after authorities suspected it contained child pornography.