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Criminal Law

Kevin Mitnick was recently convicted of violating wire and computer fraud statutes, and other charges related to computer “hacking.”  Although he was dubbed the world’s most notorious computer hacker, Mitnick’s prosecution created unique case law on the Fifth Amendment and encrypted evidence.  United States v. Mitnick (CD CAL) No. CR-96-881-MRP.

The district court was faced with a novel issue:  Can the prosecution, consistent with the Fifth Amendment’s protections against self-incrimination, refuse to produce the defendant’s encrypted files seized by police unless the defendant discloses the encryption key and, thereby, potentially incriminates himself?

It is settled law that the prosecution has an affirmative duty to reveal evidence favorable to the defense.  Brady v Maryland (1963) 373 US 83.  The defendant, however, has no reciprocal duty.  Moreover, the Fifth Amendment cannot force a defendant to explain the evidence in the prosecution’s possession.

Weighing the equities involved, the Mitnick court noted that the encrypted evidence would not be part of the prosecution’s case since it had no idea of what the files contained.  The court concluded that “[a] s long as he [Mitnick] has the keys in his pocket, there’s nothing this court is going to do about it.”  The court denied the defense access to the encrypted material unless Mitnick gave up the encryption key.

The path chosen by this district court allows (or forces) the defendant to decide between the right to access discovery and the right against self-incrimination.  If, on the whole, the defendant believes that the encrypted files would be more favorable than unfavorable to this or her case, the defendant can elect to disclose the encryption key.  If, on the other hand, the defendant believes that the encrypted files are generally more damaging that beneficial, he or she can rely on Fifth Amendment protections and rest assured that the government will likely be unable to present the encrypted evidence at trial.