Woman pleading Fifth in password case loses appeal

Woman pleading Fifth in password case loses appeal

Summary: A federal court denies a woman's appeal in a case where she said turning over her password to decrypt files was a violation of her Fifth Amendment rights.

SHARE:
TOPICS: Hardware
24

Updated 8:20am PST

A woman who invoked the Fifth Amendment to protect herself from having to turn over a password as part of a criminal case has lost her appeal in federal court.

Ramona Fricosu must now turn over the password used to encrypt a hard drive that was seized during a search of her home as part of a mortgage fraud investigation in Colorado Springs, Colo. Investigators believe the laptop holds information that may be pivotal to the case.

The ruling was handed down Tuesday by the 10th U.S. Circuit Court of Appeals in Denver, Colo., which said it lacked jurisdiction because the case has yet to be resolved in a lower court.

"The next step is for Ms. Fricosu to attempt to decrypt the encrypted machine," said Philip Dubois, Fricosu's lawyer. Dubois said Fricosu did not set up the encryption in the first place and does not know or remember the password. He said PGP encryption was used on the computer.

"It may be that her co-defendant (Fricosu's ex-husband) has the password or the pass-phrase, and if so, he may be willing to disclose it to the government, which would eliminate the possibility that Ms. Fricosu might be unable to do the decryption and so face an allegation by the government that she is faking her inability to decrypt the machine," Dubois said.

"We will make the best effort to comply with the court order," Dubois told ZDNet on Feb. 10.

Fricosu's case, in which she argued her password was protected under the Fifth Amendment, has drawn interest from civil rights groups who say that current law needs to evolve to meet the nuances of the digital age.

The prosecution, however, argued that hiding behind a password and encrypted data would make prosecution impossible in the future.

The 10th Circuit Court of Appeals in Denver ruled on Jan. 23 that the Fifth Amendment had nothing to do with the case and gave Fricosu until Feb. 21 to provide the password. On Feb. 7, Dubois filed a petition to appeal, which the court denied Tuesday. Fricosu must produce the password on Feb. 28.

Dubois pointed out that U.S. District Judge Robert Blackburn did not make a finding in his earlier ruling that Fricosu is able to decrypt the hard drive. "He did find she was associated with the computer," Dubois said.

Dubois said he had planned to argue on appeal that Fricosu's Fourth Amendment rights - which protect against unreasonable search and seizure - were also violated. Dubois says he raised the Fourth and Fifth Amendment arguments in his original objections in the case, but that the Fifth Amendment piece is what made headlines.

Topic: Hardware

About

John Fontana is a journalist focusing on authentication, identity, privacy and security issues. Currently, he is the Identity Evangelist for strong authentication vendor Yubico, where he also blogs about industry issues and standards work, including the FIDO Alliance.

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

24 comments
Log in or register to join the discussion
  • What happens if she can't provide it?

    Seriously, prove she didn't forget it. You can't so all she would have to do is "forget" it. Or try it 3-4 times and have it locked out or wipe the drive.....
    itguy10
    • RE: Woman pleading Fifth in password case loses appeal

      @itguy10
      It doesn't work that way. They use special forensic software that locks the drive against writing and then generates an image of the drive with a unique number. Then they do decryption, etc., on the image. That way even if the computer has some way to lock out or destroy the information on the drive, the information won't be damaged.

      The one exception, which is probably not the case here, is where the drive has hardware encryption, which makes the images useless. (I don't know why, but it's my understanding it does.) But the vast majority of computer users have never heard of hardware encryption and would think software encryption is adequate.

      Regarding "forgetting", courts aren't stupid. They can order the person jailed for contempt until the person "remembers". Some Mafia people have spent several years jailed for contempt rather than provide information such as names, etc., knowing if they did provide such information they would be killed.
      Rick_R
      • RE: Woman pleading Fifth in password case loses appeal

        @Rick_R

        And that thing you mention at the end of your post is totally outrageous and should not be allowed. It's basically punishing people for a crime before they are ever charged with a crime.

        Not acceptable in our system of law in the slightest.
        Lerianis10
      • RE: Woman pleading Fifth in password case loses appeal

        @Rick_R But.... set up a TPM is very easy these days. My HP laptop literally asked me to set that up when I turn it on the first time.

        Also if she used TrueCrypt then the court may even another plausible deniability issue to deal with - She may claim she only knows the password that unlock the dummy partition, but not the real one.
        Samic
  • RE: Woman pleading Fifth in password case loses appeal

    If she is a crook then beat it out of her.
    She is obviously guilty.
    MoeFugger
    • RE: Woman pleading Fifth in password case loses appeal

      @MoeFugger If they beat it out of her, I would imagine that anything they got as a result of said beating would be inadmissible in court ("fruit of the poisonous tree").
      Third of Five
    • RE: Woman pleading Fifth in password case loses appeal

      @MoeFugger

      Only obvious guilty to you and anyone who actually believes what you posted should be locked up in the nearest mental asylum for life.
      Lerianis10
  • I'm no lawyer, but common sense tells me...

    ...revealing my password which leads to self-incriminating evidence is protected by the 5th amendment.<br><br>Changing this quote: The prosecution, however, argued that hiding behind a password and encrypted data would make prosecution impossible in the future. <br><br>to: The prosecution, however, argued that shutting up would make prosecution impossible in the future.<br><br>is the same. Taking "the 5th" is SUPPOSE to make prosecution difficult - saying it's impossible is too strong.
    Bruce Lang
    • It is a good thing you are not a lawyer

      @Bruce Lang
      Q: Are keys or combinations to a safe box covered by the 5th amendment?
      A: NO

      Same rule will apply to a password of a "virtual safe".
      wackoae
      • RE: Woman pleading Fifth in password case loses appeal

        @wackoae - Court orders to produce keys or combinations are generally not served on defendants, but third parties who have the means to open such containers. And of course, authorities have the power to open such containers by force, just like they have the power to force a search of person, personal property, and premises.<br><br>Finally, being cited for contempt is not the same as being convicted of the original offense.
        terry flores
      • RE: Woman pleading Fifth in password case loses appeal

        @wackoae

        Missing the fact that this is more like having an encoded paper and the prosecution trying to coerce the person whose possession it was found in to decrypt it because they are unable to.

        THAT is the proper comparison and THAT is what the Supreme Court is going to have to decide.
        Lerianis10
      • RE: Woman pleading Fifth in password case loses appeal

        @wackoae<br><br>Not true. The court can order the keys but not the combinations. If the safe doesn't have a key, the prosecution can get court order to open the safe by any means (i.e. safe expert, safe manufacture etc) to open it. The defendent has no obligation to hand over the "information" that will open the safe which the information itself is suppose to cover in 5th amendment.<br><br>Do I need to remind you that the prosecution has the burden of proof and the defendent gets the benefit of the doubt?
        Samic
    • RE: Woman pleading Fifth in password case loses appeal

      @Bruce Lang I'm guessing the reason its not covered is that the computer was seized as evidence. Shes not being asked to say what is on it which might incriminate her. She is concealing lawfully obtained evidence by encrypting it.
      Admin71
      • RE: Woman pleading Fifth in password case loses appeal

        @Bookmark71

        Wrong. If that is the case, then they could say that you have to decrypt hand-written documents written in code for the police. There was a ruling many years ago that you do not have to do that.
        Lerianis10
    • RE: Woman pleading Fifth in password case loses appeal

      @Bruce Lang The password isn't incriminating. If she says the password, she can't be convicted. The same as having keys seized. The keys won't incriminate you.

      What is behind the door that is locked by the keys is another matter. If they have a court order to look at the contents of the disk, she has to hand over the "key". IANAL, but I don't see the 5th Amendment applying in this instance.
      wright_is
      • RE: Woman pleading Fifth in password case loses appeal

        @wright_is

        I do. It's like saying that the police find a coded documents in your home. Numerous ruling in the past have said that you do NOT have to help the police decrypt that coded document.

        THAT is the proper argument here, not the old 'key' one.
        Lerianis10
    • RE: Woman pleading Fifth in password case loses appeal

      @Bruce Lang In the past, the 5th would protect a "combination lock" but not a "keyed lock".

      Encryption is definately a "combination lock".

      B
      BrentRBrian
  • RE: Woman pleading Fifth in password case loses appeal

    It's important to note that the latest appeal was denied not by the court making a ruling on the 5th Amendment issue, but on "standing":
    "... which said it lacked jurisdiction because the case has yet to be resolved in a lower court."

    So the possible option is to let the lower court cite her for contempt, then appeal the ruling again on that basis. Just so you know, the vast majority of peremptory appeals like this are rejected for similar reasons. The Appeals courts generally want the lower court case to be completed (to verdict) before they review it.
    terry flores
    • RE: Woman pleading Fifth in password case loses appeal

      @terry flores

      Ah, that makes things more clear and reasonable.... though I don't understand why peremptory appeals are so 'frowned' upon when the judge in question is almost guaranteed to make the ruling in question because of her personal stances/own words.
      Lerianis10
  • RE: Woman pleading Fifth in password case loses appeal

    Is this like some new version of rubber hose cryptography?! (See Wikipedia)
    TooTallSid