Colorado Judge Denies Fifth Amendment Applies to Encryption PassphrasesBy: Shawn Hess - January 24, 2012
“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,”
Judge Robert Blackburn of Colorado made this statement regarding Ramona Fricosu, who is accused of being involved in a mortgage scam. He has ordered her to enter her password to unlock protected personal computer files by February 21st or face contempt of court.
Colorado Springs-based attorney, Philip Dubois, argues on Fricosu’s behalf and offers this example, “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?”
The Fifth Amendment reads in the matter of criminal defense, “nobody can be compelled in any criminal case to be a witness against himself”
This is not the first time the courts have tackled this issue. Two years ago a Vermont
U.S. District Judge William Sessions ordered Sebastien Boucher to unlock his Alienware laptop by turning over his passwords. He was accused of possessing child pornography on his laptop computer by US border patrol officers.
Eventually the original subpoena for the passwords was withdrawn however the defendant was required to unlock the computer (without revealing his pass phrases) in front of the grand jury.
Barry Steinhardt, director of the ACLU’s technology and liberty program commented on the case and asserted that Boucher “should have been able to assert his Fifth Amendment rights. It’s not the same thing as asking him to turn over the Xeroxed copy of a document.”
Presently the U.S. Supreme court views the act of making a defendant reveal pass codes as a similar act to compelling a defendant to unlock a secure safe containing incriminating evidence.
Electronic Frontier Foundation Senior staff attorney Marcia Hofmann lends her expertise to the topic commenting, “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.”
This could become a precedent-setting case for the American Justice System although The U.S. supreme court has yet to have had this issue brought before it. More on this story will follow as the case continues to unfold in late February.