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 Defense 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!