Woman pleading Fifth in password case loses appeal

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.
Written by John Fontana, Contributor

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.

Editorial standards