Encrypted laptop can't take the Fifth, federal judge rules

Is being forced to reveal your decryption password a violation of the constitutional guarantee of freedom from self-incrimination in a criminal trial? Not in the eyes of a U.S. district judge, Wired reports.

The ruling came in a case involving accusations of bank fraud. In 2010, FBI agents seized a laptop computer from the home of Ramona Fricosu, who is charged with involvement in a mortgage scam.

Fricosu has refused to decrypt the laptop, which is protected with Symantec's PGP Desktop encryption software, on the grounds that it would violate her constitutional rights. Frisosu's lawyers specifically cited the Fifth Amendment, which states that nobody may be "compelled in any criminal case to be a witness against himself."

Colorado U.S. District Judge Robert Blackburn found that line of argument unpersuasive, ruling in a decision handed down Jan. 23 that "the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer." As CNET reported, Blackburn likened the order to decrypt in this case to a 1789 law called the All Writs Act, which has been invoked to require telephone companies to aid in surveillance.

Indeed, Blackburn ruled, failing to compel Fricosu to decrypt her laptop would amount to "a concession to her and potential criminals" in other types of cases that they can evade prosecution or conviction by encrypting all digital evidence that might implicate them in crimes.

Techcrunch reports that Blackburn's court order sidesteps the usual analogies judges use in such cases. He doesn't address the question of whether being made to give up a passcode is more like being compelled to hand over the key to a safe, to use CNET's example, or more of an "expressive act" protected by the Constitution.

Instead, Blackburn focuses on the fact that prosecutors know where the data is and that the laptop and the data on it belong to Fricosu. Any documents on the laptop, Blackburn said, will require other means of authentication than just Fricosu's password.

The Supreme Court has not ruled on the issue, but several lower courts have dealt with similar cases. The rulings so far have been conflicting: A federal judge in Michigan ruled in 2010 that a man charged with receiving child pornography was protected by the Fifth Amendment from having to give up his laptop passcode, but another federal judge in Vermont decided in a 2009 case that a man accused by a border guard of having child pornography on his laptop had no such constitutional protections.

About the Author

Donald White is an assistant managing editor with 1105 Government Information Group.

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