9th Circuit orders hard drive reformatting just in case hard drives contained encrypted files

The Ninth Circuit recently upheld an order allowing the government to reformat the hard drives on a computer before returning them because the drives might have contained encrypted files, and those encrypted files might have violated the defendant's supervised release. (United States v. Spink, No. 12-30068 (9th Cir. 2013)).

The defendant had been accused of violating the terms of his supervised release by use of his computer by possessing images of bestiality or zoophilia (he had previously owned at least 52 such websites). However, it appears as though the computers had either been erased, or the defendant had encrypted files on the computer. As no evidence was apparently found (from the little facts in the opinion), the computers had been ordered to be returned.

However, after the order, the government argued that they should be able to erase the hard drives in case there were files encrypted on the drive that would violate the defendant's release.

The government professed that it could not determine whether the computers' hard drives appeared to be blank because they had been erased or because they contained encrypted information that the government could not access.

The Ninth Circuit affirmed the decision to allow the hard drives to be erased, holding:

If the hard drives have been erased, there is no harm to Spink from the government wiping the hard drives again before it returns the computers. However, if there is encrypted data, Spink presumably has the ability to access those materials, and he has not offered to access the files in the presence of the Probation Office. Moreover, if the hard drives contain encrypted materials, those materials are likely to be the type of materials that Spink is prohibited from possessing under the conditions of his supervised release.

As I've argued many times before, I think the assumption that encryption is only used to do illegal or improper acts is erroneous and a very harmful idea for courts to consider. Does a locked door to your house imply that you are hiding illegal items in your home?