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Colorado U.S. District Judge Robert Blackburn said the Fifth Amendment does not protect her from the order

A Colorado woman was told to decrypt her laptop in court on Monday in order to aid prosecutors in her bank fraud case.

Ramona Fricosu, the defendant who was accused of bank fraud in 2010, had her laptop seized by authorities during the investigation. However, authorities stumbled upon a big problem while attempting to search her hard drive -- it was encrypted.

Full disk encryption, which prevents unauthorized access to data storage, is an option found in operating systems like Mac OS and Windows. The encryption can take decades to break, and if authorities tried to crack it, it could damage the computer.

That's why Colorado U.S. District Judge Robert Blackburn ordered that Fricosu decrypt her hard drive and return it to the court so prosecutors can use her files against her in the bank fraud case.

Fricosu used the Fifth Amendment to protect herself. She argued that the Fifth Amendment protects her from compelled self-incrimination, and that the judge's order violates this. However, Blackburn didn't agree.

"I conclude that the Fifth Amendment is not implicated by requiring production of unencrypted contents of the Toshiba Satellite M305 laptop computer," said Blackburn.

Assistant U.S. Attorney Patricia Davies backed Blackburn's order, saying that allowing encrypted content to defeat authorities would send the wrong message to other criminals. In her words exactly, it would be a "concession to her [Fricosu] 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."

Blackburn has ordered Fricosu to return the unencrypted hard drive by February 21. Civil rights groups are keeping a close eye on the case.

Sources: Wired, Fox News



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No explanation?
By bug77 on 1/24/2012 10:18:21 AM , Rating: 2
quote:
I conclude that the Fifth Amendment is not implicated by requiring production of unencrypted contents of the Toshiba Satellite M305 laptop computer


Nice for him to conclude that, but how did he arrive at this conclusion?




RE: No explanation?
By jonmcc33 on 1/24/2012 10:33:40 AM , Rating: 4
Because that's his legal interpretation. Every judge is that way. The law exists but it is there for interpretation when not specifically defined. This type of case will need escalation to the US Supreme Court.


RE: No explanation?
By sigmatau on 1/24/12, Rating: -1
RE: No explanation?
By fic2 on 1/24/2012 12:04:46 PM , Rating: 2
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


What if the hard drive is full of pictures of puppies and kittens?


RE: No explanation?
By MrBlastman on 1/24/2012 12:23:30 PM , Rating: 3
Exactly. What if they didn't?

Women were burned at the stake is Salem, Massachusettes because people assumed they were witches without any proof.

Fear can not be allowed to override the balanced system of justice. The rule of law must be kept level. Innocent until proven guilty should always be a guiding mantra for our courts.

Just because someone has shifty eyes, a pot belly and grubby, undersized hands doesn't mean they are automatically a pedo. I think they're filth just as much as the rest of society but you get the idea. This concept can apply to any type of criminal.

*gasp* What if they are a controversial author or scientist that wrote somewhere the Earth orbits the Sun instead of the other way around?

Ostracization is easy to justify under the guise of context, yet easy to be condemned under the same, indentical means.


RE: No explanation?
By TSS on 1/25/2012 7:50:30 PM , Rating: 2
quote:
shifty eyes, a pot belly and grubby, undersized hands doesn't mean they are automatically a pedo. I think they're filth just as much as the rest of society but you get the idea.


That's prejudice and it's very dangerous. Not so much in the way that you mean, but it allows for the other extreme as well, that you're more trusting of people who look better.

Speaking of dutch courts and pedo's we've had lots of cases lately in the news about swimming instructors and day care people molesting children, and some big cases too. One even had a huge number of mentally handicapped children molested.

Point is people won't trust a person who looks as you're describing with their kids. I doubt anybody who looks like that works in a day care center or as swimming instructor. It's the ones that look normal who are the real danger.

Ideally, you should approach everyone with equal caution. There are exceptions on both sides of course, but when concirned with strangers that should be the general rule. It doesn't mean everybody's supposed to be a pedo. Doesn't mean everybody gets trust automatically either. It's something you earn, and very slowly. Nobody's not worthy of not being able to earn my trust, not even a pot belly, grubby with small hands looking guy. But he'll have to work for it, and it's certainly not going to start off big like letting him take care of my kids. And that goes for everybody.


RE: No explanation?
By Fritzr on 1/24/2012 6:35:55 PM , Rating: 2
IF the hard drive is full of child porn AND the defendant is required to display the contents THEN it is a clear case of self-incrimination.

IF the hard drive is full of puppies and kittens AND the defendant refuses to display the contents THEN it is assumed that the disk will incriminate.

If the defendant is required to hand over the laptop for the purpose of having it searched, that is permissible. It is now up to the court to conduct the search :D Further assistance in accessing the information, other than surrendering other objects needed for access, would be self-incrimination by providing testimony used for the purpose of obtaining a conviction.

The court does have the option of cloning the drive and using a supercomputer to decrypt the contents if they really need the laptop information for a conviction. The defendant can not be required (legally) to provide testimony that will assist their conviction. This assistance is requested routinely though and is occasionaly backed up by contempt of court proceedings.

The lay assumption is that if the defendant refuses to display their photos of cute little puppies and ktittens, they are admitting to be guilty of the crime they are accused of.

That may be true. But there could be other reasons. The defendant may be completely innocent of the child porn charge that is being used to justify the search and simply protecting the photos that would prove he is the serial killer the police are still searching for. This would then definitely be a 5th amendment case :P


RE: No explanation?
By YashBudini on 1/25/2012 2:29:13 PM , Rating: 2
Try driving drunk and saying you won't take a breathalyzer test based on the 5th Amendment. Watch what happens.


RE: No explanation?
By bigdawg1988 on 1/24/2012 12:16:03 PM , Rating: 2
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?

Exactly!!! Would +1 you if I could.


RE: No explanation?
By Camikazi on 1/24/2012 4:40:54 PM , Rating: 2
Actually yes, unless they can break the encryption themselves they should not be allowed to force anyone to do it for them. They have the laptop they can do whatever they want with it, if they can open it good for them they got evidence (if there is any) if they can't then it is not admissible. It's not the defendants job to find the evidence for them.


RE: No explanation?
By Gondor on 1/24/2012 12:26:43 PM , Rating: 1
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


If that hard drive is full of something illegal, it is up to investigators to prove it. Pony up the evidence and go to court, not the other way around.

It is most certainly not up to the person incriminated to provide evidence for the prosecution against him/herself.


RE: No explanation?
By bug77 on 1/24/2012 12:57:38 PM , Rating: 2
quote:
What if the person in question had a hard drive full of child porn?


I believe that exactly what the fifth amendment is for.
I don't think it says: "you have the right not to incriminate yourself, but only when there is nothing to incriminate you in the first place." Yes, it may mean this person may walk away, but it also means no one will ever have the power to force me let them look at my computer and be able just say "oh, sorry, nothing to see here" afterwards.


RE: No explanation?
By jonmcc33 on 1/24/2012 1:21:21 PM , Rating: 2
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


I'm no expert but I'd say "yes". If that hard drive is encrypted and the DA has nothing other than that then they are completely protected.

But if you are dumb enough to do child porn then I doubt you'll be smart enough to encrypt your hard drive.

In this BANK FRAUD case I do believe someone that commits a crime like that is intelligent enough to cover their tracks by encrypting their data.


RE: No explanation?
By JediJeb on 1/25/2012 6:58:18 PM , Rating: 1
quote:
What if the person in question had a hard drive full of child porn? Are they allowed to hide behind a password?


With the 5th Amendment they should be. But if you are suspicious they are dealing in child porn, then you should be able to gather other evidence if you are a good investigator because there should be a trail to how the porn got onto the hard drive in the first place. The 5th Amendment is there to keep a person from incriminating themselves, but it does not prevent investigators from discovering the evidence by other means.


RE: No explanation?
By mattclary on 1/24/2012 10:43:55 AM , Rating: 3
You can not use the 5th amendment to avoid getting your house searched. Just because the key is in your head does not make this any different.


RE: No explanation?
By MrBlastman on 1/24/2012 12:43:36 PM , Rating: 2
Yes but they can't search your head... yet. :-|

http://www.law.cornell.edu/supremecourt/text/487/2...

Read.

I quote:

quote:
... He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed


That's the Supreme Court there.


RE: No explanation?
By YashBudini on 1/25/2012 4:05:37 PM , Rating: 2
That's fine they've basically already decided.

Plenty of people convicted on just very damming circumstantial evidence.


RE: No explanation?
By Camikazi on 1/24/2012 5:01:44 PM , Rating: 2
A key is a physical object, they can and will get access to that, but a password or a combination is NOT physical, it is in your mind and your mind and all thoughts are private and not something they can force you to give away.


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