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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 icemansims on 1/24/2012 11:32:41 AM , Rating: 2
No...not at all. They HAVE the laptop. They want the information on the laptop. It's closer to saying, "We know you have a foreign bank account. We want you to get your transaction list from your bank (where we don't have jurisdiction) to prove you were dumping illegal funds into it."
The prosecution can subpoena things (confiscate the laptop), but they can't force the accused to DO something (decrypt the laptop) to incriminate themselves.
It's self incrimination and it's unconstitutional.


RE: Send the wrong message?
By 3DoubleD on 1/24/2012 12:02:49 PM , Rating: 2
That falls into the same "opening the gun locker" argument. The courts can issue a warrant to search your private property if they have probable cause. Requiring that the locker be decrypted by the defendent is no different as requiring the defendent to search their home. Your constitutional rights are protected by probable cause in order to get that warrant(so long as the government stops trying to do away with that one). Therefore they have to prove there is reason to believe you have commited a crime and what they expect to find upon the search. In this case they certainly have both.


RE: Send the wrong message?
By adiposity on 1/24/2012 1:45:18 PM , Rating: 2
I disagree, it is different, because a lock combination is protected under the 5th amendment, as ruled by the Supreme Court. This is quite a bit like a lock combination, as it is information in the mind of the defendant.

Now, since they have a warrant to the laptop, they may feel they are not getting access to what the court ruled they have access to. In which case, they are free to take more brute strength means to access said laptop. If you need a defendant's help to convict them, then in my mind that falls within the 5th amendment.


RE: Send the wrong message?
By Solandri on 1/24/2012 2:23:32 PM , Rating: 2
quote:
I disagree, it is different, because a lock combination is protected under the 5th amendment, as ruled by the Supreme Court.

Do you have a citation for this? This closest I was able to find was:
http://laws.lp.findlaw.com/getcase/US/487/201.html

In it, the opinion that the lock combination is protected by the 5th Amendment is not a majority opinion ruling. It is a dissent by a single Justice (Stevens).


RE: Send the wrong message?
By adiposity on 1/24/2012 4:07:11 PM , Rating: 2
In that decision, they stated that they did not disagree with Steven's dissent on the point of combination safes. They simply disagreed that the combination safe analogy was apt in the case of turning over bank records.

Also see here: http://blogs.denverpost.com/crime/2012/01/05/why-c...

So basically, while not legally binding, the Supreme Court have essentially implied that turning over a lock combination is protected by the 5th amendment.

Another issue is, if someone gives up their encryption key, they are admitting "ownership" of the encrypted (and potentially illegal) contents. The admission then could be used against them. So the very act of showing the ability to decrypt the drive is actually providing evidence against yourself.

This is why you should use an encryption scheme where different passwords decrypt different things, and it is impossible to prove what is encrypted and what is not. Then if you are forced to decrypt your drive, you give the "lame" key, they can't prove there's another key.


RE: Send the wrong message?
By YashBudini on 1/25/2012 4:16:35 PM , Rating: 2
quote:
, if someone gives up their encryption key, they are admitting "ownership" of the encrypted (and potentially illegal) contents. The admission then could be used against them.

That would be the fine line between saying "I don't know the combination" or saying "I won't give it to you."


RE: Send the wrong message?
By JediJeb on 1/25/2012 6:34:32 PM , Rating: 2
quote:
they can't prove there's another key.


That's assuming a good digital forensics expert can not determine what scheme you are using to hide all the data. If they are able to piece together data from a smashed hard drive I imagine they can also determine what kind of encryption you are using even though they may not be able to easily decrypt it.


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