Jessie Rossman, an attorney with the American Civil Liberties Union of Massachusetts, told Ars that her organization is “disappointed in the decision.”
“For example, an individual can be forced to hand over a key to a locked safe if the government already knows that’s your safe—the documents in there have already been created,” she said.
“Your opening that safe, the documents are already there. That’s not new testimonial. But encrypted data needs to be transformed into something new when decrypted. A number of encrypted technology works such that when you look at [a hard drive] you can’t even tell what is empty space or what is not empty space. When you decrypt that computer it’s creating something new and if you didn’t have any knowledge, the act of decrypting tells you something you didn’t know beforehand. We believe that the Fifth Amendment and Article 12 needs to protect not only the act of entering a code but the act of producing decrypted files to the government.”
Marcia Hofmann, an attorney in San Francisco with extensive experience in digital law, told Ars that she also did not agree with the court’s ruling.
“The police think they’re going to find mortgage fraud, but they don’t know what they’re going to find, and they don’t know where that supposed evidence is,” Hoffman said. “That is not a foregone conclusion. They don’t seem to have a good sense. This is a fishing expedition.”
Fred Cate, a law professor at Indiana University, told Ars that this ruling could come with an unfortunate consequence. If someone admits to owning a computer and asserts that they possess the password, “it’s only likely effect is to encourage future defendants to be less forthcoming with police.”
“This seems to be an issue likely to head to the Supreme Court where, despite today’s sweeping 9-0 victory for privacy involving searches of cellphones, the outcome is not at all certain,” he added. “Historically, the high court has taken a dim view of efforts to expand the Fifth Amendment privilege against self-incrimination or to apply it in novel ways. In the meantime, we should expect to see both federal and state courts continuing to reach divergent results when faced with this important question.”