One need not be guilty of a crime to assert the right to remain silent under the Fifth Amendment to the United States Constitution. This testimonial privilege permits a person to refuse to answer any question that may tend to implicate them in a crime. The Obama administration is seeking to cheapen the currency of the right to remain silent in an Oregon case in a case with chilling implications for anyone who uses a computer.
Ramona Fricosu is accused of participating in a mortgage fraud scheme. The Government wants access to her computer files. While agents have seized her computer, they cannot read her files. That is because she has encrypted them, thus rendering them unintelligible to the Government. The Government wants a federal judge to compel Fricosu to decode the files.
The lower courts are split on whether forcing a person to decode their files violates the Fifth Amendment’s bar against compelling a person to testify against himself. In 2010, a federal judge in Michigan ruled that Thomas Kirschener, who faced possession of child pornography charges, did not have to decode his files. Yet in 2009, a Vermont federal judge ordered Sebastian Boucher to decode his files, in another child pornography case, ruling that such a requirement did not violate the Fifth Amendment. The Supreme Court has yet to weigh in on the issue.
The right to remain silent is a core protection against Government over-reaching. It is a limit beyond which officials cannot go. While the Constitution does not use the terms privacy or autonomy, the document is steeped in concerns about permitting law enforcement to compel people to give evidence against themselves. The theory is that no matter how bad it might be for a person to commit a crime, it is worse to empower the Government to force a person to become an agent of their own undoing: worse than any crime is the specter of an inquisitorial state with the power to compel us to confess.
The high court has narrowly construed the right to remain silent, however. It is a mere testimonial privilege. Efforts to extend it to a right against being compelled to “give evidence” against oneself have failed. Thus, a person can be forced to give a handwriting sample, a DNA sample, or a bite mark sample without violating the Fifth Amendment. These sources of evidence are often pivotal in determining the identity of a person who committed a crime.
In the Fricosu case, prosecutors wave the red flag of necessity to justify forcing the defendant to decode her computer files. The Government’s ability to combat crime will be hampered without such an order, prosecutors contend. One longs for a judge with gumption enough to respond to such an assertion by saying, simply: “Hey, stupid, the Fifth Amendment is supposed to do that.” Moral panic is a tyrant’s best friend. There are some things worse than the violation of the penal code, among them, a government that runs roughshod over the individual liberty.
Unlike the compulsion to give over identifying physical evidence, which the Courts have sought to justify on grounds that while these acts communicate information tending to identify perpetrators of crime without invading the person’s right not to speak, requiring a person to decrypt information is a communicative act: it compels a person to offer information against himself by means of expressing themselves. In other words, the Government seeks the right to compel a person to engage in communicative conduct against their penal interest. Unlike forcing a person to open their mouth so that a laboratory technician can swab the inside of their mouth for a DNA sample, or forcing them to write “Sally sold seashells at the seashore” for purposes of an exemplar, forcing a person to decode a computer file requires them to offer up information existing only in their mind. The act violates a sense of autonomy and integrity that is either at the core of the Constitution’s regard for the rights of persons, or the Constitution is becoming meaningless.
Prosecutors can try to sidestep the testimonial issue by contending that Ms. Fricosu need not give prosecutors any secret codes. No one is asking her to speak or to give information to the Government. All that is required is that she sit at a keyboard and decrypt files already written. She can retain the means of decryption so long as she provides the Government with a usable copy of her files. She need do no more than move her fingers on a keyboard, an act which resembles the act of providing a handwriting exemplar. This is a specious claim.
The writing of a sentence on command by the Government, even the command to write a note of a specific and inculpatory sort, such as rewriting verbatim the contents of a kidnapper’s ransom note, does not attribute communicative content to the writer. A monkey or a robot might be trained to write words given to them. Requiring the declarant to draw the words from the wealth of their own knowledge, or thought processes, invades a province that is and ought to remain foreign to governmental compulsion.
In the First Amendment context, the courts have been clear that expressive conduct includes not just speech, but conduct that conveys meaning. Thus a dance can communicate as much as a word. Surely, it should take no great leap of the imagination to see that requiring folks to set their fingers dancing across keyboards to suit the investigative fancy of an ambitious cop is tantamount to forcing a confession from the lips of the accused.
The pendulum swinging between the requirements of order and the imperatives of liberty has swung too far in favor of order when prosecutors can say to the courts, in effect, if you do not give is this power, then we cannot fight crime. There are things worse that letting an accused go free. Violations of the law are rarely matters of high moral consequence. Increasingly, violation of the law is but mere conduct of which the Government disapproves for reasons that may or may not make sense. Our Constitution has a built-in counterweight to the ubiquitous desire of the state to regulate and possess all: we simply say “no” when the Government overreaches. Let Uncle Same pout all he likes by being told no; it will be good for him.
The Courts have become complicit in law-enforcement rape of the Fourth Amendment’s guarantee against searches and seizures of our persons and property. Stakes are far higher on the frontier of the Fifth Amendment right to remain silent. Now the victim of Government rape stands to be the very soul of the people government is created to serve.
President Obama can restore confidence in his commitment to civil liberties by calling off the mutts in the Justice Department prepared to wage war on the minds of the people. If he does not, and if he permits the Justice Department to run head long into this assault on liberty, there is a good chance a deeply divided Supreme Court will justify this latest outrage against the Bill of Rights by yet another 5-4 vote. The prospect horrifies. This is not the sort of hope we so audaciously longed for, Mr. President.