Judge says defendant must decrypt files, Fifth Amendment not at issue

Judge says defendant must decrypt files, Fifth Amendment not at issue

Summary: A federal case that may have helped define constitutional law in the digital age turns not on the defendant's rights in regard to her encryption password, but on the fact that evidence clearly showed she owned a laptop in question and had access to its contents.

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In what was thought to be a precedent setting case in the digital age, a federal judge ruled Monday that a woman arrested in a mortgage scam must give authorities access to her encrypted hard drive.

The defendant, Ramona Fricosu, argued that exposing the contents of the hard drive by entering her password and decrypting the files would violate her Fifth Amendment rights against self-incrimination.

The judge in the case, which was heard in U.S. District Count in Denver (Colo.), found that was not the situation and gave Fricosu until Feb. 21 to produce an unencrypted hard drive.

"I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer, " wrote U.S. District Judge Robert Blackburn.

The laptop in question, Blackburn said, more likely than not belonged to and was used by Fricosu. The one piece of damning evidence was a jailhouse conversation Fricosu had with her ex-husband, Scott Whatcott, who also was arrested in the case. Blackburn's ruling included a transcript of the conversation, which he said proved Fricosu owned and had access to the computer.

Blackburn also noted that the defendant had been granted immunity and that federal prosecutors would not use her act of producing the laptop's contents in the case against her.

The case drew interest from civil rights groups who argued that current law needs to evolve to meet the nuances of the digital age. The case, however, did not turn on the question if Fricosu's encryption password was something she had or something she knew but on the jailhouse conversation with her ex-husband.  If the password was found to be a key, she would have been compelled to give it up. But if it was ruled something she knew, she was protected by the Fifth Amendment.

That password question as it relates to the Fifth Amendment will have to be tackled head-on by future cases.

The Denver Post reported that Fricosu's attorney, Philip Dubois, told the judge in an earlier hearing that if the password is treated like a key "the meaning of 'search warrant' will be stretched and the rights to privacy and against self-incrimination shrunk."

The Post also reported that Patricia Davies, an assistant U.S. attorney, told the court during the same hearing that allowing Fricosu to hide behind a password will signal that "encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers." She said such a situation would make prosecution impossible.

The Electronic Frontier Foundation (EFF) filed a brief in the case arguing that if the government forces people to turn over their encryption passwords that it is forcing people to be witnesses against themselves in a way that violates the constitution.

Topics: Hardware, Laptops, Mobility

About

John Fontana is a journalist focusing in identity, privacy and security issues. Currently, he is the Identity Evangelist for cloud identity security vendor Ping Identity, where he blogs about relevant issues related to digital identity.

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  • The moral of the story

    is that if you're smart enough to encrypt your hard drive but dumb enough to have an incriminating conversation in jail you're still not protected.
    matthew_maurice
    • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

      @matthew_maurice - There is another big issue here. There is no independent verification of what the data means. When I discover a paper record, I have some means of verifying what was written, and a way to interpret it. But with encrypted data, how do I know it was decrypted correctly? If it fails to produce the evidence desired by the prosecution, can they continue to push for contempt or obstruction punishments?

      Given the different forms and sophistication of encryption, it's possible to hide not only the data itself, but the very nature of the data. This presents a problem that has yet to be addressed.
      terry flores
    • Just because you BRAG about committing a crime .....

      ..... does not prove you did it!
      Look at all the high school kids bragging about their imaginary conquests!
      kd5auq
      • True .... but when you are were already on trial for the same crime ...

        @kd5auq ... then bragging about it while in jail is about the same as ADMITTING the crime.

        Sorry, but the excuse that all he was doing was bragging is completely ridiculous and cheap.
        wackoae
  • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

    Here is my proposition going forward... Since the actual information to be handed over is the object questioned with regard to 'self incrimination'... One new textual addition to anyone's password combination should then include the wording "I'm Guilty" to then make it incontravertable that such 'information' itself is, in fact, self incriminating. (did anyone follow that?, it makes sense).

    In essence, handing over this password would, in itself, be an act of self-incrimination, thus, you have a protected right not to do so.
    TechNickle
    • The hard drive does not exist in a tertiary domain, it's right here.

      @FuzzyBunnySlippers

      This isn't complicated. The data on the drive is the same as papers in a safe. The hard drive is subject to a warrant. Just because you plug in a computer doesn't mean it exists in a different realm of reality. No one would argue she shouldn't have to open a safe, and it's rather pinheaded to say that a hard drive is any different. Making your password "I am Guilty" sounds like something my five year old niece would say. From her, it's cute. From an 'adult', it just sounds stupid.

      If your going to operate a criminal enterprise, don't keep records where they could be found.
      pishaw
      • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

        @pishaw <br><br>Oh, I see. The "it sounds stupid" defense, wrapped within an attempt at an insult to serve as some form of proof. The act of turning over a key is not self incriminating. Turning over a statement "I am guilty" actually is. So, your five year old neice may have something on you.<br><br>BTW, where does this even come into play regarding my statements, "Just because you plug in a computer doesn't mean it exists in a different realm of reality."? I called out your straw man on that. I suppose changing what I've said to that made it somewhat easier to argue against. Good job killing your own straw man... now let's talk about what I've actually proposed.
        TechNickle
    • This is the same as turning over stuff in a bank safe

      @FuzzyBunnySlippers If a criminal stores incriminatory evidence in a safe at a local bank, the judge can grant a subpoena for everything and the defendant has to turn over the contents. It is the same as forcing a defendant to turn over a key for an encrypted hhd.

      There is plenty of precedence to support the decision ....
      wackoae
      • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

        @wackoae <br><br>Reread what I've written. Turning over a key is NOT self incriminating. Turning over a statement/password "I am guilty" is.<br><br>Also, the defendant (in this case) has turned over the contents. Unfortunately for the prosecution, the contents have been encrypted. There is no (AFAIK) provision for the state of, or readability of said 'contents'. If the contents were written in a dead language, Latin, encrypted, or otherwise, the truest form of contents have been handed over. Inability of the prosecution to read or derive information from these contents is NOT the burden of the defendant.

        As for "plenty of precendence...", why have you not included one reference? Being that this case is just breaking this ground, I am of the opinion that your statement is not fully based in fact.
        TechNickle
  • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

    Honestly, she should ignore the judge's orders and appeal. If there is something on her hard drive that is incriminating, she has a right to refuse giving it as testimony.<br><br>That's one problem with our judicial system, some judges interpret the law differently - many times in error - so you have to change your venue and argue the semantics in front of SCOTUS. Precedence changes fairly often; therefore, obedience to authority should not be a gut reaction for fear of suffering a longer sentence.
    Vapur9
    • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

      @Vapur9

      Comment removed after OP change.
      TechNickle
    • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

      @Vapur9 <br><br>One thing that has been postulated with regard to this case... the fact that the accused does have apparent knowledge of method to unlock further evidence, in past this may be considered either a key, or actual evidence within the case. Withholding evidence is criminal, and a key (seemingly physical based on case-precedence, although this seems to be the crux) would need to be forfeited. This case has risen to a level that the 'object' to be forfeited to the courts is the specific item of a password (non-physical entity), and is the specific item (not the information gathered post-forfeiture), that is being held against the terms of the 5th amendment, self incriminating. In short, does the knowledge of, and withholding of this password pose as withholding evidence, as obstruction of justice, or is it (in itself) a self-incriminating entity?<br><br>If the entity does not incriminate the defendant, but the use of this entity serves to incriminate the defendant, does that qualify (of itself) as self-incriminating. The only method of defense (IMO) is to assure the entity DOES incriminate by including within it's very being, the wording as I proposed earlier. (separate post where I proposed including the wording "I'm Guilty".)<br><br>In short, the simple inclusion of guilt within the password would act as a method of self-incrimination, and therefore, also as grounds to never accede to forfeiture of knowledge (under the 5th amendment) of contents of said password.
      TechNickle
      • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

        @FuzzyBunnySlippers<br><br>Good idea; change all passwords and hints to contain the words, "I'm guilty" regardless if it was meaningful. This would help prevent the intrusion of complicated judicial logic. Of course, there could also be a need to have some semblance to the crime, such as "I committed this crime here on this date ..." as a password hint.<br><br>I wonder if changing her password to or from something like that would be destroying evidence ...
        Vapur9
      • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

        @FuzzyBunnySlippers - Actually withholding evidence is not a crime in itself, if you are the one accused. That's the essence of the 5th Amendment protection of self-incrimination. The government is allowed the power of search and seizure of physical evidence, but they cannot compel you to speak or act against yourself. There has been some creep in the interpretations of "obstruction of justice" but they mainly apply to active intervention (false or misleading statements, spoliation of evidence) as opposed to non-cooperation or maintaining silence.
        terry flores
  • Everyone's missing a crucial legal weasel-wording here

    The fifth amendment only applies to *self* incrimination. Since the prosecution gave her immunity for anything discovered on the encrypted drive she *can't* incriminate herself, thus providing the password is not self-incrimination. :)

    The judge made no decision about password and the fifth amendment at all!
    wolf_z
    • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

      @wolf_z - I would have to agree with the poster that said she should contest the ruling and appeal. For one thing, "immunity" deals have often been repudiated of weaseled out of by prosecutors and the courts. And as he does not quote precedent but simply his interpretation of the 5th, there's a substantial probability that it could be overturned.
      terry flores
      • I think the wolf has it right

        @terry flores
        If the prosecutor chose to repudiate the immunity deal and go after her anyway, then any evidence gathered under the auspices of that deal (and the judge was very specific about that, apparently) becomes 'fruit of the poisonous tree' and would be unavailable in the later prosecution. The prosecution can't simply say "well now we know this fact so we will use it" without having to face a 5th Amendment ruling at that time. Self incriminating is self incriminating. If the information is only available because the 'witness' is not to be prosecuted, then prosecuting the witness changes the situation.
        use_what_works_4_U
      • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

        @macadam - the exclusionary rules have been severely weakened by court decisions over the past 30 years. The scenario you describe would not hold. Take a look at United States v. Leon for the "good faith exception" and Hudson v. Michigan to see how the courts have consistently limited the rule to what Justice Scalia calls "the last resort." Also check Walder v. United States, which established that "the defendant cannot take advantage of the situation (police breaching rules) to turn the case to his advantage, in face of other evidence against himself."
        terry flores
  • RE: Judge says defendant must decrypt files, Fifth Amendment not at issue

    Does anyone know what encryption software is used here?
    CPJeff47
  • Judge says

    "The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself or OTHERWISE provide the State with EVIDENCE of a testimonial or COMMUNICATIVE nature. Schmerber v. California, 384 U.S. 757 (1966). The privilege exists to spare the accused from having to reveal, directly or indirectly, his knowledge of facts connecting him to the offense or from having to share his thoughts and beliefs"

    So if the privilege exists to spare the accused from having to reveal, directly or indirectly, his knowledge of facts connecting him to the offense --- how does her refusal to divulge the password not fall under the 5th right against self-incrimination. The requirement to help in a search warrant does not trump the constitutional right not to self-incriminate. This is going all the way to the Supreme Court, imo.
    DanaRB