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

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.