The Wall Street Journal recently reported a case out of Florida where the Justice Departmentto force an sought a ruling accused to decrypt his hard drive in an alleged child porn case: DOJ Won't Seek Review of Decryption Ruling.

The court refused to grant the motion and apparently the DOJ is not going to appeal the ruling. However, as reported by the WSJ in a Colorado case a federal judge ordered a woman to unlock files on her laptop.

These cases raise a very interesting and contentious issue: on the one hand, the authorities should not be thwarted in their lawful pursuit of evidence; on the other hand, an accused should not be compelled to assist in the discovery of incriminatory evidence.

In a Canadian case the issue was raised in the context of a disclosure motion. An accused, Robert Cattral sought disclosure of information on a hard drive seized by the police - the only problem was that the information was encrypted. The Crown resisted disclosure but indicated that if Cattral provided the decryption key they would unlock the material and disclose it. The court dismissed the motion by Cattral and did not order the Crown to disclose the material. The court indicated, however, that if Cattral provided the key the Crown could unlock it and would be required to disclose the material: R v Beauchamp, 2008 CarswellOnt 2756 (SCJ).

DG Mack