The Fourth & Fifth Amendments and technology continue to collide as law enforcement seeks to compel defendants to unencrypt their computer harddrives. Can they force your client to hand over the password?
We discussed a similar issue in May about whether, under the Fourth Amendment, the Government could inspect the contents of your laptop, tablet, phone or camera when you cross the border.
Of course, do not expect the answer to be set in stone in your jurisdiction. The answer(s) are in flux. Much of it depends on how your client responds to questioning.
The first issue is whether production of a password is compelled testimony or merely a ministerial act like submitting to fingerprints, blood tests, or a key.
The second issue turns on your client. In two cases, Boucher and Fricosu, clients sunk their own ship. In a Florida case, In Re Grand Jury Subpoena Dated March 25, 2011, the defendant did better.
The article, “Can the Government Compel Your Client to Decrypt a Hard Drive” is in the July-August 2013 edition of the Palm Beach Bar Bulletin.