Woman who pleaded Fifth in password case now citing Fourth

Woman who pleaded Fifth in password case now citing Fourth

Summary: A woman who argued that providing a password to authorities was a violation of her Fifth Amendment rights has filed an appeal in her case and is now also citing the Fourth Amendment.

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TOPICS: Hardware
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A woman who pleaded the Fifth Amendment before being ordered by a federal court to provide a password to decrypt a computer hard drive is appealing the order and now citing the Fourth Amendment.

The case drew national attention when the accused, Ramona Fricosu, argued that surrendering a password was a violation of her Fifth Amendment rights, which protect against self-incrimination.

Fricosu, and her now ex-husband, were arrested in 2010 on bank-fraud charges as part of a mortgage scam.

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 Tuesday, Fricosu's lawyer, Philip Dubois filed a petition to appeal. A ruling should come in the next 10 days. Dubois, however, did succeed in getting Fricosu's password deadline pushed back to Feb. 28.

Now, her lawyer says if the appeal is granted that he will argue 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 argument is what ignited the media.

"I think it is simply wrong to force people to assist the government in searching for evidence with which they intend to use to prosecute that person," said Dubois. "I think that is unreasonable. I think it amounts to an unreasonable search."

He said the Fourth Amendment is a better argument "for us and for the public in general."

Fricosu's case drew interest from civil rights groups who argued 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.

Dubois says the Fourth Amendment argument ties into the Fifth Amendment, which is also "about due process of law and fundamental fairness. "

Dubois, who once defended PGP creator Phil Zimmermann, says he is unsure if Fricosu can decrypt the hard drive of the laptop police seized from her home.

"She used PGP encryption and I'm not sure she set it up," he said. "Certainly I have forgotten many passwords in my life and I suspect I am not the only one."

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

"If we get the appeal denied, we will make the best effort to comply with the court order, but if she is unable to decrypt the computer we will have another issue on our hands," Dubois said.

A trail date has yet to be set in the case.

Topic: Hardware

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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12 comments
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  • RE: Woman who pleaded Fifth in password case now citing Fourth

    "I cannot recall anything whatsoever.... My answer therefore and the simple truth is, 'I don't remember, period'" -- Ron Reagan, said in Feb. of 1987, denying knowledge of the Iran-Contra "arms for hostages" deal.
    isenberg
  • Novel claim

    The claim that a court order to divulge a password is unreasonable on it's face will raise some eyebrows. It actually strikes me as frivolous.
    John L. Ries
    • RE: Woman who pleaded Fifth in password case now citing Fourth

      @John L. Ries

      If the evidence gathered will most likely be used to prosecute her, how can that claim be seen as frivolous? People have a right not to incriminate themselves. Forcing her to divulge the password is an indirect way of getting her to do just that. That's like getting a court order to compel someone to reveal where they've hidden the body or murder weapon. Honestly, the fact that the prosecutor got such a request granted by simply arguing how hard it will be to prosecute this case and others like it in the future is scary. It's the prosecutor's job to prove his or her case. The defendant has no obligation to assist them with that burden and the court should not compel them to.
      SaharaGA
      • The Fifth-based argument has already been rejected

        @SaharaGA
        Do you have a better Fourth Amendment argument than the one cited in the article? Or can you make a reasonable case that ordering a password to be divulged constitutes an unreasonable search, even if there is probable cause?
        John L. Ries
  • RE: Woman who pleaded Fifth in password case now citing Fourth

    "On the face of it" any order to open a locked door so that agents of the prosecution may seek out evidence is indeed a violation of the 4th and 5th Amendments as they were interpreted for the first 200 years or so of this nation's history. It is only recently that government has proclaimed unlimited power of citizens. Government is worng. Most courts are wrong when they abide by and aid & abet such activities.

    I would rather 10 criminals go free than have government assume such authority.

    Come to thinkof it, wasn't it one fo the Founding Fathers who said something similar to that?
    WCarlS
    • RE: Woman who pleaded Fifth in password case now citing Fourth

      @WCarlS
      <i>Come to thinkof it, wasn't it one fo the Founding Fathers who said something similar to that?</i>

      No, you're thinking of English jurist William Blackstone, who said that it's better to let 10 criminals escape justice than for one innocent person to suffer injustice (at the hands of government).

      Also, you're wrong about any order to open a locked door being a violation of 4th/5th Amendment rights. By that logic, no law enforcement entity could ever bring any criminal to justice, so long as that criminal didn't turn himself in. The fact is that a law enforcement officer is virtually never going to witness a major crime happening, which seems to be the only way you think the LEO should be able to bring the criminal to justice. That's anarchy.
      swmace
  • This was always mainly a 4th amendment case

    The 5th amendment bit was long settled: people have been compelled to give up the combinations to their safes, for instance.
    x I'm tc
    • I think you're wrong

      @jdakula ... the distinction is between testimonial evidence and nontestimonial. A sample of your dna is nontestimonial evidence and the courts regularly compel you to provide it, but the combination to a safe is testamonial evidence, and they cannot.

      ...

      ???The Fifth Amendment means the government can???t compel you to turn over testimonial information that would reveal the contents of your mind and tend to incriminate you,??? Marcia Hofmann, a senior staff attorney at Electronic Frontier Foundation, which filed a brief in support of Fricosu, told ABC News. ???A password is something you know, something that???s in your mind. It???s a different thing entirely than turning over a physical key.???
      HollywoodDog
    • RE: Woman who pleaded Fifth in password case now citing Fourth

      @jdakula Actually this is incorrect for the most part. Court orders to compel opened locks generally have been applied to third parties, not the person under indictment. I can get a court order to open a company vault, but I serve it on the company, not the person who is being prosecuted. The company has to open the vault or face contempt charges, but contempt does not apply in cases of self-incrimination.

      That will be the most interesting part of this ruling: what is the charge and penalty for non-compliance? A person cannot be convicted of the original charge simply because they refused to cooperate. The judge might site for contempt, but a contempt charge generally holds a lesser punishment.
      terry flores
  • That's a worrying development

    If you can't be forced to take the stand to be crossexamined under oath, why should the law be able to force you to divulge information that will enable them to build a case against you or perhaps even add additional charges for crimes they only discovered after viewing the drive's contents?

    If the authorities can't legally force a murder suspect to divulge how and where he/she disposed of a murder weapon, then they shouldn't be able to force any individual to divulge a memory that enables the lawmen to access the data on a drive that they already have in their possession but can't use. Furthermore, the drive may highlight the commission of additional crimes which may drastically increase the jail time. It's not as if she had a piece of paper with the password written on it hidden somewhere on her body. You can get a search warrant for a person's body...but not their brain.
    eMJayy
  • RE: Woman who pleaded Fifth in password case now citing Fourth

    Actually, I think the 5th Amendment argument was more valid than the 4th Amendment argument. The 4th Amendment doesn't say that the government can't search or seize information/things that they plan to use against you. In fact, that is the whole point of the search/seizure to begin with. To find evidence to use against you. If the government had a warrant signed by a judge describing the particular place/person to be searched and what they expect to find, the 4th Amedment argument goes right out the window.
    swmace
  • Amicus brief in the fifth amendment case

    This has a passage that is worth noting:

    https://www.eff.org/files/filenode/us_v_fricosu/fricosuamicus7811.pdf

    The government seeks the Court???s approval to grant Fricosu ???limited immunity??? to prevent the government from using the act of producing the unencrypted data against her in any prosecution. Gov. App. at 7-8. Specifically, this immunity will not permit the government to use the act of production against Fricosu, but apparently will allow the government to use the data actually obtained through the act of production against her, as well as any evidence the government learns as a result of accessing that information.
    This limited immunity does not defeat Fricosu???s Fifth Amendment privilege against selfincrimination because it is not ???coextensive with the scope of the privilege.??? Kastigar v. United States, 406 U.S. 441, 453 (1972); Boucher I, 2007 WL 4246473 at *5.When a witness???s act of production is testimonial in character, the government must grant use and derivative-use immunity to satisfy the Constitution???s requirements.
    Hubbell I, 530 U.S. at 41-46. This means that the government may not use the act of production itself against Fricosu, nor any evidence on the computer derived from the act of production. Kastigar, 406 U.S. at 453. As the Supreme Court has explained, use and derivative-use immunity ???prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.??? Id. (emphasis original).
    Should the Court decide that Fricosu must supply the data on the laptop in decrypted form, the government will face a ???heavy burden of proving that all of the evidence it proposes to use [from the laptop] was derived from legitimate independent sources.??? Id. at 461-62. Placing this burden on the government ensures that the grant of immunity leaves the prosecutors and witness ???in substantially the same position as if the witness had claimed [her] privilege in the absence of a grant of immunity.??? Hubbell I, 503 U.S. at 40, citing Kastigar, 406 U.S. at 458-59 (internal quotation marks omitted).
    The government???s offer of limited immunity???with no guarantee against use or derivative use of the information Fricosu would be forced to supply???is not comprehensive enough to secure Fricosu???s Fifth Amendment rights. She is therefore justified in refusing to provide the password. Kastigar, 406 U.S. at 449.
    HollywoodDog