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North Carolina Criminal Defense Attorneys

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Self-Incrimination Privilege Protects Encrypted Hard Drive In Sex Offenses Investigation

A government investigation of alleged child pornography led to the seizure of one man's two lap top computers and five external hard drives. Parts of each were encrypted by a program called TrueCrypt and forensic examiners from the Federal Bureau of Investigation (FBI) were unable to view that material.

The grand jury then issued a subpoena duces tecum - an order requiring the man to turn over certain documents - for the unencrypted files. Claiming a Fifth Amendment privilege against self-incrimination in the sex crimes case, the man refused to comply with the subpoena. He was held in contempt for failing to produce the unencrypted files.

An expert witness for the government testified that, without the files being unencrypted, there was no way to tell what was stored in them. There could be something that supported the government's case that the man was possessed child pornography. Or there could be nothing but random data.

The Court of Appeals for the Eleventh Circuit ruled that the government couldn't compel the man to produce the unencrypted files because doing so would violate his constitutional right against self-incrimination. Whether the Fourth Circuit, which includes North Carolina, would come to the same conclusion is something to discuss with your sex crimes defense lawyer before handing over any incriminating evidence to the prosecution if you are facing sex crime charges.

The Fifth Amendment to the United States Constitution provides, in part: "No person shall be...compelled in any criminal case to be a witness against himself..." By forcing the man to provide the unencrypted files from his own computer, which he may or may not have had the ability to do, would be forcing him to offer testimony as to his own guilt or innocence.

Source: U.S. Court of Appeal Eleventh Circuit, "United States of America v. John Doe, "February 23, 2012

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