When a person is under criminal investigation, can that individual be forced
to surrender his or her computer passwords or encryption codes? This is
an issue that was recently discussed by Cleveland Criminal Attorney Ian
N. Friedman in an
article by The Plain Dealer. The article specifically discussed the case of a Bedford, Ohio judge
who was being investigated (and was later charged) for alleged prostitution
and corruption. Prosecutors in the case filed a motion that asked for
a court order that would require the judge to surrender an encryption
code, which would unlock certain files on his computer. The judge has
so far refused, claiming that doing so would violate his Constitutional
right under the Fifth Amendment to avoid self-incrimination.
In a case like this, who legally has the upper hand—the investigators
and prosecutors who are trying to obtain the password information, or
the person who is trying to protect it? According to Attorney Friedman's
legal insight provided in the Plain Dealer article, this is anything but
a cut-and-dry issue. It is actually an issue that has lacked consensus
in the courts in the past, with some courts ruling one way and other courts
ruling the opposite way.
Many believe that when someone hands over an encryption code or password
to a computer, that person can then be seen as admitting to his or her
knowledge or control over the computer's content, which can be seen
as a form of self-incrimination, according to Attorney Friedman. However,
the article explains that there have been a few cases in which the court
ruled that the individual
could be compelled to give up such information. In these cases, it was because
the prosecutors were able to give specific details about which files they
were searching for and where they were located.
Why has it been so hard for the courts to get on the same page on this
issue? Attorney Friedman says this is largely due to the fact that the
court is working off of legal principles that never really caught up with
the current age of technology—the legal precedents that are used
are those that were set prior to current advances in technology. As further
explained by The Plain Dealer, some consider giving up computer passwords
as being equal to giving up the key to a safe, while other consider it
as being equal to giving up a combination to the lock on that safe—two
concepts that carry different standards of self-incrimination.
In addition to being an attorney, Mr. Friedman is also an Adjunct Professor
at Cleveland-Marshall College of Law who teaches on computer and criminal
law. He is a seasoned
criminal defense attorney who has won top honors for his work as a legal professional.
Ian N. Friedman, Attorney at Law offers cutting-edge defense for various
types of criminal cases.
Contact us to learn about the legal services we offer!