If I destroy my encryption keys, can I be charged with destruction of evidence?

Chicago, IL Viewed 55 times. Posted 5 months ago in Criminal Defense

Can I be forced to hand over my encryption keys in court? I have searched alot about this, and can't seem to find a defenite answer. And if so, can I be held liable for additional security measures? Lets say I have secretencryptedfile.txt that is encrypted and lets say to decrypt it, I need two keys: one is key.txt that is located on the computer, and the other I have memorized. If the cops beat down my door and I hit the self destruct button that erases key.txt, would that be destruction of evidence? What if I place a measure that would destroy key.txt when the cops seized my computer? Would me not telling them be obstruction of justice, or could I argue I don't have to assist in an investigation against myself? (5th amendment?) Lastly, what if I simply claimed to forget the key?

Best Answer (as selected by the question's author)

John M. Kaman

This attorney is licensed in California. Posted 5 months ago.

Strictly speaking material is not evidence until it has been introduced into evidence in a civil or criminal proceeding. Nonetheless, there is a common law tort called spoliation of evidence and the cases which discuss it do not interpret evidence so narrowly. In addition there may be criminal sanctions available against anyone who destroys "evidence" in the everyday sense of the term. Even if pretrial destruction of relevant material does not rise to the level of a crime, the court or jury may conclude that it wouldn't have been destroyed if it weren't incriminating.

As far as telling the police the codes your self goes that would constitute a violation of 5th amendment rights if the codes led to incriminating material. You should not talk to the police at all and you definitely do not have to explain the operation of your computer to them.

John M. Kaman

Additional Answers (1)

Howard Woodley Bailey

This attorney is licensed in New Jersey. Posted 5 months ago.

I agree with the assessments of Mr. Kaman, who is correct as usual. Additional points to consider: 1) The encryption keys are potentially discoverable (both the private and public keys) from various means, but that does not mean that you can forced to divulge them under the 5th Amendment. 2) The action of pressing the delete button is more analogous to the typical act of destruction of evidence - such as flushing something down the sink - which would probably be charged as destruction of evidence or a similar statute. If you are actually concerned that you may have something on your computer that law enforcement would be beating down your door to get, I suggest that you should discuss the issues in detail with an experienced criminal defense lawyer admitted to practice law in IL as soon as possible, as finding a lawyer conversant with computer crimes, and the various issues involved with encryption programs may take more then a few consultations. Good luck.

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