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Take the 5th? Not With Encrypted Hard Drives, Says Fed Judge

By John P. Mello Jr.
Jan 25, 2012 8:31 AM PT

Encrypting data on your computer may protect you from hackers and thieves, but it won't protect you from crime investigators.

Take the 5th? Not With Encrypted Hard Drives, Says Fed Judge

That was the finding of a federal district court in Colorado Monday in a case involving a woman who refused to decrypt the files on her laptop for government prosecutors.

The woman, Romona Fricosu, of Peyton, Colo., denied prosecutors' demand to decrypt the files on the grounds that doing so would violate her Fifth Amendment rights. She argued that forcing her to use her password to decrypt the files was tantamount to self-incrimination, which is prohibited by the U.S. Constitution.

Federal District Court Judge Robert Blackburn, an appointee of President George W. Bush, disagreed with Fricosu and ordered her to type in the password that would decrypt the hard drive.

Typing Versus Talking

Fricosu is accused of being involved in a mortgage scam. The laptop was seized by the FBI from her bedroom during a raid on a home she shares with her mother and children. After failing to crack the PGP encryption on the drive themselves, prosecutors demanded Friscou decrypt the drive for them.

Although the Constitution prohibits the government from compelling persons to incriminate themselves, self-incrimination is largely limited to "utterances." So prosecutors can't force someone to tell them a password, but that doesn't mean, at least in Judge Blackburn's view, that they can't compel someone to type a password into a computer.

The password problem has long been an issue in the privacy world, according to Marc Rotenberg, executive director of the Electronic Privacy Information Center.

"The critical distinction seems to be the difference between the government requiring someone to speak a password -- a testimonial act that violates the privilege against self-incrimination -- as compared with someone writing a password or simply providing a decrypted version of the text, which courts have held is permissible," he told TechNewsWorld.

Controversy Over 'Testimony'

From the law's point of view, keys, combinations to safes and passwords are treated alike, according to Jonathan Zittrain, cofounder and codirector of the Berkman Center for Internet & Society at Harvard University.

"While the combination is an uttered fact, it's just a stand-in for the key -- and while it may be incriminating oneself to possess the key, and then hand it over and have the documents exposed, that's not the sort of 'testimony' that the Fifth Amendment is thought to protect," he explained to TechNewsWorld.

Judge Blackburn's view of what's "testimony" under the Fifth Amendment isn't shared by some civil libertarians. In fact, some argue that the amendment extends beyond the mere protection of passwords.

"We believe that encrypting data is itself a testimonial act under the Fifth Amendment and that a person should not be compelled to decrypt data," Gregory T. Nojeim, director of the Center for Democracy & Technology's Project on Freedom, Security and Technology, told TechNewsWorld.

Early Example

For Fricosu 's attorney, Philip L. Dubois, his client's case is another example of where the law has failed to accommodate itself to the digital age.

"The old law doesn't make sense when applied to the digital world," he told TechNewsWorld.

"The law is always behind technology, and this is another example of that," he added.

This is the first time this issue has squarely landed before a judge, he maintained. There have been several past cases that were similar, but different in meaningful ways, he explained.

"This is the first time that it's been clean and clear that the government doesn't know what's on this drive, they have a warrant to search it, and they want us to decrypt it for them," he observed.

"Those precise facts have not been before a judge, and that's why this is important," he added.

He plans to ask Judge Blackburn to postpone the execution of his decision while an appeal is filed in the case.

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