The Business-Technology Weave

Jul 12 2011   10:26AM GMT

Department of Justice: Forcing you to decrypt?

David Scott David Scott Profile: David Scott


Does your right to remain silent, as protected by the U.S. Constitution’s Fifth Amendment, extend to encryption on a personal laptop?


It’s an interesting subject, and one that might be settled soon – by the Supreme Court.  A woman accused of, and being prosecuted for, a mortgage scam in Colorado is under pressure to disclose her passphrase for decrypting her laptop, which police found in her bedroom upon the raid of her home – she has refused.


The Obama administration is asking a federal judge to order the defendant, Ms. Ramona Fricosu, to decrypt the laptop.  As a slight aside, prosecutors don’t want the passphrase itself.  They want Ms. Fricosu to simply type it in, and make the files available in their decrypted form.  This may seem a minor point, but it does remove any wrinkles that may be encountered upon court rulings that make divulgence of the passphrase itself a protected item within the Fifth Amendment’s protections.


At the heart of the matter is whether a defendant can be compelled to serve up something from the privacy of their mind:  Other courts have ruled that protections extend there.  Prosecutor’s, however, liken passphrases to physical keys, and defendants can be made to produce keys to safes, for example.  It’s an interesting situation.


One could make the argument that forcing a defendant to divulge a passphrase (or password,  encryption keys, etc.) enters the realm of breaking protections against self-incrimination.  While the Supreme Court has not yet ruled in matters such as these, lower courts have – and their rulings have, essentially, gone both ways:  In one case stating that an individual did not have a Fifth Amendment right to keep files encrypted; in the other, that the defendant did – thus “protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination.”

Ms. Fricosu is charged with money laundering, wire fraud, and bank fraud in an alleged attempt to gain titles to homes via falsified court documents.  She’s facing up to 30 years or more in prison. 


For the rest of us, with – hopefully – more mundane privacy concerns, we can understand a desire to keep business secrets, diaries, and privileged communications from friends and associates private. 


For us, and most definitely for business, the case does bear watching.  



On this day:  July 12, 1962, the Rolling Stones make their first public appearance (Marquee Club, London).


2  Comments on this Post

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  • TomLiotta
    Submission of DNA is sometimes compelled. And if THAT can't be seen is a most fundamental example of self-incrimination, it's hard to see what a password (etc.) could be classified under. DNA has potential for long-term future incriminations, not to mention future risks from bio-technology advances. Regardless, if a [B]valid warrant[/B] exists that permits access to the laptop, it seems to me that the defendant may be legally compelled to enable access. Tom
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  • David Scott
    [I]Excellent [/I]points Tom. I'm not a lawyer, but they'd likely argue that DNA is an empirical attribute (somewhat, but not quite, like fingerprints), whereas passwords/phrases are intellectual property of a sort. Again, they are attempting to compel someone to divulge something from their mind, and that's where the self-incriminatory nature of this arises from, vis-a-vis the Fifth Amendment (and the Miranda warning?). The act of [I]committing by a self, a crime[/I], is "self-incrimination" by virtue of the act; as discovered - and certainly fingerprints and DNA are fair game in proving cases - so I'd be interested in hearing where the lines are drawn. I'd be curious to hear more on this - either from Tom, and certainly any others out there. I'm no lawyer, so please - weigh in! Fascinating area. - DS
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