Dealing with Data Encryption in Criminal Cases

Over the last several years, I’ve posted a handful of short blog entries about the topic of compelling a criminal defendant to surrender a passphrase to an encrypted volume or hard-drive. These entries concern the three cases of re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, United States v. Fricosu, (D.Colo, 2012), and In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist. Lexis 13006 (D. Vt., 2009). I have developed the opinion —admittedly, more on hunch than scholarly research— that a defendant should not be able to knowingly withhold a passphrase or password to an evidence trove any more than he should be permitted to hang on to a physical key that could be used to open a safe that the Government has a valid warrant to search, and which is believed to contain evidence. Unfortunately, I have found myself on the wrong side of this issue…

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