A major precedent could be set by U.S. federal courts in the near future. The Obama administration is petitioning federal judges to order defendant Ramona Fricosu to give up the encryption password to the laptop found in her Colorado home. If Fricosu is forced to decrypt the laptop by judicial order, it would mark the first time this issue has been ruled on.
Fricosu is being charged with a slew of things including bank fraud, wire fraud, and money laundering. The alleged goal of all of this activity was to use falsified court documents to obtain the titles to Colorado homes that were to be foreclosed.
The argument against a ruling that Fricosu must decrypt the laptop is that it would violate her Fifth Amendment right to remain silent. Further, Fricosu's lawyer Philip Dubois, made the point that defendants aren't obligated constitutionaly to assist with the interpretation of their files or handwritten data. As Dubois put it, "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"
While Dubois has a strong argument, the US Justice Department just doesn't see things the same way. Their argument is simply that by not decrypting the machine their ability to build evidence for a case is being impeded.
"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."
To make Fricosu feel better prosecutors promised they don't actually want the password to her machine itself, they just want her to enter it so that they can access the files.
As expected the Electronic Frontier Foundation (EFF) is very much interested in this case. The EFF argues that forcing Fricosu to decrypt the laptop would violate her fifth amendment rights. The EFF has expressed that they are interested in the case because they want to ensure that encrypted files receive the protection of the fifth amendment as computers become more portable and encryption more popular.
EFF Senior staff attorney, Marcia Hofmann said,
"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it. Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."
Exactly how this plays out will set a precedent for encrypted files to either be protected by the fifth amendment or require defendants to decrypt them at the prosecution's demand. The results of this are definitely worth keeping an eye out for.
