Back in July of 2011 defendant Ramona Fricosu was arrested for mortgage fraud. The government petitioned federal judges to order Fricosu to give up the encryption password for her laptop. Fricosu and her lawyers argued that doing so would violate her Fifth Amendment right to remain silent. Now judges have weighed in and are ordering Fricosu to decrypt her hard drive.
Judge Robert Blackburn cites an earlier ruling in making his decision, the case against Sebastien Boucher. In that case it was decided that while the encryption password itself was protected, the information on his hard drive was considered evidence and thus was not subject to Fifth Amendment liberties.
"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," Blackburn wrote in his opinion. Blackburn also claimed that the All Writs Act, used to require telephone companies to help in cases of surveillance, could also be invoked to force decryption of a hard drive.
Fricosu is being given until February 21 to decrypt her drive or face a contempt of court charge. Fricosu’s lawyer Phil Dubois is looking to fight the decision.
"I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals. I think it's a matter of national importance. It should not be treated as though it's just another day in Fourth Amendment litigation."
Dubois also claims that his client may not be able to decrypt her drive for a number of reasons. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said.
This ruling falls in line with the US Department of Justice view of the issue. Last July the DOJ argued that not decrypting a drive impeded an investigation.
“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”
It will be interesting to see if Dubois has any luck during the appeals process and what exactly the reasons would be that Fricosu may not be able to decrypt her own hard drive. Either way this is a precedent setting decision with implications that will be interesting to follow moving forward.
