In a new article on an unresolved question, Joshua A. Engel writes, in part:
In cases starting to wind through state and federal courts, the government has sought to compel suspects and defendants to provide passwords and encryption keys. For example, in a Colorado case involving allegations of real estate fraud, the government seized several computers after executing search warrants at the defendant’s residence. The government obtained an additional search warrant to search a laptop, but was unable to read the encrypted contents. The government then sought an order compelling the defendant to provide or enter the password.
The Colorado case remains undecided, but other courts to address this issue have generally concluded that the provision of a password or encryption key is subject to the protections of the Fifth Amendment because the provision of this information is essentially an admission that the person had possession and control over, and access to, the computer, files, or data. A good illustration is found in In re Grand Jury Subpoena to Sebastian Boucher. U.S.D.C., D. Vt. No. 2:06-mj-91 (February 19, 2009).
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