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District Court Holds that Defendant Cannot Refuse to Decrypt Hard Drive under Fifth Amendment
By Brittany Horth – Edited by Abby Lauer

U.S. v. Fricosu, No. 10-CR-00509 (D. Colo. Jan. 23, 2012)
Slip Opinion hosted by Internet Cases

Judge Robert E. Blackburn of the United States District Court for the District of Colorado granted the government’s motion to compel Ramona Camelia Fricosu to provide an unencrypted copy of her hard drive for evidentiary purposes. The court considered whether the act of producing the unencrypted hard drive was privileged and not whether the contents of the hard drive were privileged.

Judge Blackburn held that the Fifth Amendment is not implicated by requiring Fricosu to provide the government with the unencrypted contents of her laptop pursuant to a valid search warrant.  He reasoned that Fricosu was not being compelled to self-incriminate because the government had already met its burden of proof by demonstrating that it knew of the location and existence of the relevant computer files and it knew that Fricosu was the sole or primary user of the laptop.  Additionally, the government offered immunity to Fricosu, under which it could not use her production of the unencrypted contents against her. The production of the unencrypted hard drive could thus not be incriminating in and of itself.

Time Techland provides a brief overview of the case. Internet Cases features a concise analysis of Judge Blackburn’s reasoning. The Electronic Frontier Foundation, who filed an amicus brief in the case, criticizes the court for “dodg[ing] the question of whether requiring Fricosu to type a passphrase into the laptop would violate the Fifth Amendment” and failing to recognize the potential testimonial value of the encrypted data. CNet News summarizes the long-debated issue of whether a defendant can legally be compelled to decrypt his or her computer files as well as the likelihood that the debate will continue. 

Fricosu and her husband, Scott Whatcott, were indicted for mortgage fraud in 2010. On the day following the search by law enforcement that resulted in the seizure of the relevant laptop, Fricosu spoke with an incarcerated Whatcott on the phone about her laptop and its security system. The conversation was recorded. In holding as he did, Judge Blackburn reasoned that this recorded phone conversation referencing a password-protected computer, in addition to the fact that the relevant laptop was identified as “RS.WORKGROUP.Ramona.” and was the only encrypted laptop of the three seized laptops, satisfied the government’s burden of proving that Fricosu owned the relevant laptop. This conclusion was vital to Judge Blackburn’s determination that the production of the unencrypted hard drive would not be incriminating.

In his opinion, Blackburn relied heavily upon a few analogous court decisions in existence. He primarily relied upon In re Grand Jury Subpoena to Boucher, 2007 WL 4246473 (D. Vt. Nov. 29, 2007) (Boucher I) and In re Grand Jury Subpoena to Boucher, 2009 WL 424718 at *2 (D. Vt. Feb. 19, 2009) (Boucher II). In Boucher I, the District of Vermont held that the defendant could not be compelled to provide his computer password because the act of providing a password is testimonial and thus privileged under the Fifth Amendment and relevant Supreme Court precedent. But in Boucher II, the same court held that the defendant could be compelled to provide the unencrypted contents of his computer because the government knew both of the location and existence of the relevant computer files and that the defendant owned the computer. Also in Boucher II, the government agreed that it was precluded from using the production of the unencrypted contents against the defendant.

Despite this court’s holding, recent commentary indicates that the long-debated issue over whether a defendant can legally be compelled to decrypt his or her computer files remains largely unresolved. On the one hand are concerns about incentivizing criminals to encrypt all of their computer files, and on the other are concerns about increasingly serious encroachments on the right to privacy and the right against self-incrimination. The issue will only become more pressing as data and encryption increase in complexity.

Brittany Horth is a 1L at the Harvard Law School.

Posted On Feb - 2 - 2012 Comments Off

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