Submitted by Gene Howington, Guest Blogger

The 5th Amendment of the U.S. Constitution reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The language is clear.  There is no reasonable alternative construction or deconstruction of the language that renders any permutation of the right against self-incrimination to yield a contrary result.  You don’t have to offer testimony against yourself in a criminal proceeding in any court of law.  Ever. In what seems an ever increasing and endless assault on the civil rights of American citizens, even this right spelled out in plain language is under attack. This time the alleged assailant is U.S. District Court Judge Robert Blackburn, a George W. Bush appointee.  Judge Blackburn has ordered a criminal defendant to produce a unencrypted version of an encrypted hard drive.  While several lower courts have addressed this issue, the Supreme Court has yet to weigh in on it.  That may change.

But is the 5th Amendment really under attack here?  The 5th Amendment applies to testimony.  The issue at hand here is production of evidence. Different standards and protections can apply to compelling the production of evidence. The case in front of Judge Blackburn is U.S. v. Fricosu.

Continue reading “Show and Tell: Decrypt Your (Potentially Incriminating) Secrets Or Be Held In Contempt” →