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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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RE: Send the wrong message?
By mattclary on 1/24/2012 10:41:40 AM , Rating: 2
There have been cases where they keep you in jail until you give them what they want, I believe.


RE: Send the wrong message?
By Obujuwami on 1/24/2012 11:23:21 AM , Rating: 3
That, too, is illegal. They can't incarcerate you indefinitely until you give them what they want, they would have to levy multiple contempt orders against you. On top of that, it would be a publicity and financial nightmare as once the word gets out that the government is doing this, they will have several rights groups up in arms suing on behalf of the person in jail. This would be a major drain on the government's resources and they would broker a deal at that point.

What would be smarter is to just set up bit locker and have access be dependent on a flash drive, password, and a chip on the mobo. Then intentionally wipe the flash drive...that would piss off authorities AND it would be a lesser crime. I doubt that the courts would understand what happened and it's easier to hide that little snafu than just saying you forgot a password.

Food for thought!


RE: Send the wrong message?
By HrilL on 1/24/2012 11:33:34 AM , Rating: 5
"Your honor I haven't seen the flash drive since the police took everything from my home. If they lost it then it is not my fault that they won't be able to decrypt my hard drive."


RE: Send the wrong message?
By quiksilvr on 1/24/2012 12:45:33 PM , Rating: 3
That would have worked had she not opened her yap and said "No, I won't." This means that she very well does have the means to access her hard drive but won't do it, even though they have a perfectly legal warrant (and it is clear she committed Bank fraud and is totally guilty).


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 1:06:52 PM , Rating: 5
If she did commit bank fraud and is guilty then it's up for the prosecution to prove. But they can't. Never heard of innocent until proven guilty?

The burden is upon the DA to prove she is guilty. It isn't upon her to prove her innocence. Without proof they have no case.


RE: Send the wrong message?
By dragonbif on 1/24/2012 12:30:05 PM , Rating: 3
It is not really illegal per say. If you are held in contempt for a reason they can hold you until you are no longer in contempt. Say you keep disrupting the court proceeding, the judge can send you back to lock up and bring you back the next day. If you keep doing it your case will not get anywhere and you spend most of your time in county.

For the laptop most states now consider digital files the same as physical files. For example in the past if you have a safe with possible evidence in it the court can order you to open it. If you refused or say you forgot they could hold you in contempt. Some consider an encrypted hard drive to the same. However it is true they do not want to send you to county jail for the rest of your life so they would give you an offer after a year or 2. They would let you plead guilty and give you your sentence accordingly. And may consider time spent.

One of the purposes of the 5th is so the court cannot put you in a position where you have to break the law. It is considered a crime to lie under oath and if they put the person on trial on the stand they would have to lie to protect themselves. Unlocking a safe, opening a door, or decrypting a hard drive is not considered self-incrimination but allowing access to possible evidence.

This is not the first time this has come up and it won't be the last. It has come up many times from everything from fraud to child porn cases.

I'm not saying I agree with it I am just saying how it currently is. I would hate for child porn people to be able to get away with it just because of bitlocker =(

By the way people have sued for holding someone in contempt but the judge can toss out the case if they cant prove/show the possiblility it was not done legally at the get go. Not all lawsuits have their day in court.


RE: Send the wrong message?
By Hieyeck on 1/24/2012 1:44:42 PM , Rating: 2
IANAL, but wouldn't the statute of limitations apply here as well? If they can't prove your guilt within X time, they MUST let you go (barring crimes already exempt from the statute).


RE: Send the wrong message?
By dragonbif on 1/25/2012 12:49:02 PM , Rating: 2
Nope the statute of limitations would not apply because she has been charged, they just need more data. Contempt is a crime and so you can get stent back to jail until you comply. They cannot send you to the state prison they have to keep you local (close to the court house). The reason is they have to review it every so often. So as long as the judge does not dismiss the case it is your fault the case is not proceeding and not the states.

The statute of limitations has more to do with charging someone within a certain amount of time.


RE: Send the wrong message?
By Schrag4 on 1/24/2012 1:53:50 PM , Rating: 2
quote:
It is not really illegal per say. If you are held in contempt for a reason they can hold you until you are no longer in contempt. Say you keep disrupting the court proceeding, the judge can send you back to lock up and bring you back the next day. If you keep doing it your case will not get anywhere and you spend most of your time in county.


Are you saying they would bring you back day after day, indefinitely? I really doubt that, but to be honest I don't know. Anyone have some insight?

quote:
I'm not saying I agree with it I am just saying how it currently is. I would hate for child porn people to be able to get away with it just because of bitlocker =(


We all would hate for criminals to go free. But some of us would hate EVEN MORE for the state to have the power to make sure everyone they prosecute is convicted, whether they're guilty or not. Just like we'd all hate for another terrorist to hijack a plane in the US, but I think most of us would be willing to take the risk if it means our kids won't be groped by TSA employees.


RE: Send the wrong message?
By Ammohunt on 1/24/2012 1:55:47 PM , Rating: 2
That’s not entirely correct the Federal Government has the power to suspend your constitutional rights on a whim and does! Ask anyone that has had any dealings with government entities such as the Secret Service. This means that they can detail you till you die of old age for pretty much any reason.


RE: Send the wrong message?
By Just Tom on 1/24/2012 2:44:49 PM , Rating: 2
quote:
That, too, is illegal. They can't incarcerate you indefinitely until you give them what they want, they would have to levy multiple contempt orders against you


Not quite. Read up on H. Beatty Chadwick, who was imprisoned for 14 years on a single count of contempt of court. There are very few rules on judicial use of contempt of court, and in civil contempt cases - basically any attempt to coerce a witness to cooperate - there is no need for criminal trial. Judges have incredible leeway here.


RE: Send the wrong message?
By jonmcc33 on 1/24/2012 5:01:08 PM , Rating: 2
Wow. What an injustice. More and more I'm encouraged to leave for Canada.


RE: Send the wrong message?
By mcnabney on 1/24/2012 10:03:58 PM , Rating: 3
Hey doofus, the Canadian government has more power than the US government. Canadians only have a right to silence.

And you better not go to Europe. Some of those nations don't even provide an assumption of innocence.


RE: Send the wrong message?
By myhipsi on 1/25/2012 10:10:17 AM , Rating: 2
The right to silence, which includes the right to not be compelled to be a witness against ones self. It is effectively identical to the 5th amendment in the U.S.


RE: Send the wrong message?
By YashBudini on 1/25/2012 2:20:48 PM , Rating: 1
She's guilty of hindering prosecution. People who have been silent that aided and abetted criminals have also broken the law. They already have the contents ergo the evidence, they're simple demanding for interpretation of what they have.


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