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.