Cough Up That Encryption Key - or Else!
Whether the protection afforded by the Fifth Amendment extends to the refusal to open encrypted computer files is at the center of a potentially precedent-setting case in Colorado. The issue is "not specifically the computer or the email. It's the encryption," said EFF staff attorney Hanni Fakhoury. The issue comes down to whether the government has the right to force the defendant to become complicit in her own incrimination.
Can the courts make you open your computer? They can certainly confiscate your computer and search it for evidence of criminal activity; they can compel you to open encrypted files if you're a suspected terrorist (The Patriot Act); but if you plead the Fifth, they may not be able to order you to fork over passwords.
A woman in Colorado, Ramona Fricosu, has been charged with fraudulent real estate transactions in a mortgage scam. Police raided her residence and found a laptop in her bedroom. The potentially incriminating evidence resides in encrypted files. The Obama administration has asked a federal judge to order the defendant to de-encrypt the encrypted laptop.
The U.S. Justice Department claims the court order grabbing the computer is a sufficient extension of the government's right to the contents of the computer, even if it requires compelling the defendant to cough up passwords.
Taking the Fifth
In a brief filed Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, insisted the defendant can't be constitutionally obligated to help the government open files that may be self-incriminating. In essence, she has a right to plead the Fifth.
Attorneys at the Electric Frontier Foundation agree.
"Decrypting the data on the laptop can be, in of itself, a testimonial act, revealing control over a computer and the files on it," said EFF staff attorney Marcia Hofmann in a statement. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."
There is little precedent in the territory of electronic evidence. U.S. appeals courts have yet to rule on whether computer owners can withhold encryption keys as an exercise of their right to remain silent under the Fifth Amendment, or whether such resistance constitutes contempt of court.
Role of the Accused
The issue is not the computer. The authorities have the right to take a computer and they have the right to search it for evidence of criminal activity.
The issue is "not specifically the computer or the email. It's the encryption," Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, told TechNewsWorld. "Having the defendant de-encrypt the laptop is a violation of the Fifth Amendment. They have the computer, but they can't access it because it's encrypted. The government prohibits them from forcing her to de-encrypt it due to the Fifth Amendment."
The issue comes down to whether the government has the right to force Fricosu to become complicit in her own incrimination. While the prosecution may view this as a simple matter of asking Fricosu to fork over evidence they have rights to through their search powers, the extra step of offering a password could be tantamount to a forced confession of guilt.
"If the government had the computer and it was not encrypted, they would have the right to it under lawful possession," said Fakhoury. "They have the right to search it. They can't break into the computer, so they want to force her to break into it. They can't force you to give up the evidence necessary to incriminate you. Forcing her to de-encrypt it would do that."
No Blanket Protection
Not all access to evidence that is potentially self-incriminating is protected by the Fifth Amendment. Sometimes the degree of self-incrimination is defined by the defendant. Sometimes the defendant has no rights under the Fifth at all. The lack of precedence on electronic evidence leaves the question wide open.
"I think from a constitutional standpoint, it is in the right of the individual to say whether this is self-incriminating or not," Peter S. Vogel, a partner in Gardere Wynne Sewell, told TechNewsWorld.
"I don't see a blanket on this," he continued. "Under the Patriot Act, the government has the right under any circumstances to view the contents of a computer. So we have a variety of instances. I have feeling we will talk about this more in the future."