When looking at recent case law and Supreme Court rulings on how advances in technology affect the rights of the accused it appears to be a mixed bag. This is especially true in the case where suspects are asked to disclose passwords or decryption keys. The Fifth Amendment to the U.S. Constitution provides that no person “be compelled in any criminal case to be a witness against himself.” There have been two key conflicting Supreme Court rulings that have bearing on the Fifth Amendment issue.[1] The 1966 Miranda v. Arizona ruling resulted in the reading of “Miranda” rights by law enforcement officials on the “right to remain silent.” A recent case heard by the Supreme Court (Salinas v. Texas) concluded that silence alone was insufficient to invoke the Fifth Amendment privilege.
The state courts appear to be really divided on how to interpret Fifth Amendment issues with respect to non-disclosure of : 1) encryption keys, and 2) account passwords. I’ll summarize three separate state cases in chronological order from Delaware, Colorado, and Wisconsin below.
Late 2011 – Delaware Case
In Gore v. Long and BHA Group (Del. Ch. Dec. 28, 2011) (Parsons, V.C.) an employee “Long” was terminated after which he went to work for BHA Group. Gore asserted civil claims that Long had unauthorized access to company’s electronic documents. Long turned over company Blackberry upon termination but apparently had copies of some company documents on his personal smart phone and also retained some storage devices. Long could also face criminal penalties under certain provisions of Delaware law; therefore, he said that he would invoke the Fifth Amendment if asked questions involving potentially incriminating information.
During the trial Long did invoke the Fifth Amendment but Gore argued that Long had waived this right when he answered certain questions regarding the sequence of events. The judge (Vice Chancellor Parsons) used a “totality of the circumstances” test on the issue and upheld Long’s invocation of the Fifth Amendment by ordering the striking of certain portions of Long’s testimony. Although this case does not deal with encryption, the use of this test establishes an important legal precedent.
Early 2012 – Colorado Case
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Jane Ginn | | @SedonaCyberLink
Ms. Ginn has over 29 years of professional experience in engineering consulting and international business. She has provided board of director services, C-level operations management, trade association and US government agency advisory board services. She has provided corporate leadership for a wide variety of technical services, including overseeing organizational IT departments responsible for global deployments. She is currently the Managing Director of SedonaCyberLink.
She is a former Fellow of the Institute for Resource Management. She also taught for the University of Phoenix for 10 years and currently provides occasional guest lectures at Northern Arizona University.
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