Judge rules defendant may be forced to decrypt her laptop

By on January 25, 2012, 7:30 AM

Judge Robert Blackburn made a ruling (PDF) this week which may change the way encryption is handled in future court cases. Although the defendant invoked 5th amendment rights as many others in prior, similar cases have, Judge Blackburn does not believe requiring the defendant to reveal the contents of her own encrypted drive is in conflict with constitutional rights.

Ramona Fricosu, a Colorado woman accused of being involved in a mortgage scam, was asked to decrypt a PGP-encrypted laptop seized during an investigation by the FBI. Her defense argued that the 5th amendment protects her from doing so, as she would be incriminating herself.

The 5th amendment states that an individual cannot be "compelled in any criminal case to be a witness against himself", making it broadly referred to as the right to avoid self-incrimination. 

Used in conjunction with the "right to remain silent", it could have been -- and may still be -- a reasonable defense for Fricosu since authorities need her password in order to decrypt her laptop's hard drive. This requires Fricosu to reveal her "knowledge" (ie. password) possibly relating to incriminating documents. It is generally thought such an act is in opposition to 5th amendment rights.

However, Judge Blackburn disagreed with Fricosu, in his 10 page ruling. Rather than having her share her password, Blackburn took a more pragmatic approach. Apparently, his solution is to merely have Fricosu decrypt the drive herself, eliminating the need to share her password. The judge ordered her to decrypt the computer by February 22 or face contempt of court charges.

Her attorney, Phil Dubois, hopes to appeal the decision and believes it is far more than, "just another day in Fourth Amendment litigation". According to Dubois, the ruling may set a precedent with serious, national repercussions. The attorney also represented Phil Zimmerman, the creator of PGP, in a previous case involving the possible export of encryption technology, a violation of ITAR.

Incidentally, her laptop was protected with Symantec's PGP Desktop Professional: apparently, so good even the FBI can't break it.




User Comments: 19

Got something to say? Post a comment
tonylukac said:

Sorry, I lost my password

gwailo247, TechSpot Chancellor, said:

Contempt of court is a pretty minor charge compared to what a person could be facing. I'd rather deal with that.

Guest said:

the defendant is wrong.

it is not a right against self-incrimination.

imagine, one is accused of kidnapping someone and putting the victim in the trunk of a car.

can the kidnapper claim that he cannot open the trunk because he may incriminate himself?

the state has the right to "inspect" everything within reason.

Guest said:

In a case like this I think that denial to comply with such a simple request is equal to admission of guilt and should be treated as such. On a side note, Symantec can make good software? Who knew.

killeriii said:

gwailo247 said:

Contempt of court is a pretty minor charge compared to what a person could be facing. I'd rather deal with that.

It's not either/or.

You get held in contempt until you comply with the courts orders, then you continue with your trial.

That can mean jail time, or a continuing fine. When you get tired of sitting in jail (or run out of money from the fines), and give in to the court. You still get prosecuted for the original crime you were being charged for.

Muggs said:

Well if we look at a laptop as a modern day filing cabinet then her keeping wanting to keep it locked probably should not be allowed. If you have a warrant and that warrant allows you access to a premises you are required to unlock and allow access to everything on those premises. The laptop is no different than a safe or as I said before a filing cabinet so I don't know why it would have different rights just because it is digital information.

gwailo247, TechSpot Chancellor, said:

killeriii said:

gwailo247 said:

Contempt of court is a pretty minor charge compared to what a person could be facing. I'd rather deal with that.

It's not either/or.

You get held in contempt until you comply with the courts orders, then you continue with your trial.

That can mean jail time, or a continuing fine. When you get tired of sitting in jail (or run out of money from the fines), and give in to the court. You still get prosecuted for the original crime you were being charged for.

If the info on the laptop is 100% guaranteed to convict you, you're better off with the contempt of court charge. anything < 100% is better in this case, never know what might happen in the interim, especially with a constitutionally questionable ruling.

Guest said:

If they already have evidence to hold her then it shouldnt be a problem. If theres no evidence or other reason then it comes down to if a warrant is justifiable. if theres no warrant theres no problem for this person because it is her property

Guest said:

A warrant allows the government to examine physical premises. The warrant cannot force an individual to participate in the process.

lchu12 lchu12 said:

tonylukac said:

Sorry, I lost my password

Don't forget to say "your honor." at the end of that sentence. lolz

Camikazi said:

Guest said:

the defendant is wrong.

it is not a right against self-incrimination.

imagine, one is accused of kidnapping someone and putting the victim in the trunk of a car.

can the kidnapper claim that he cannot open the trunk because he may incriminate himself?

the state has the right to "inspect" everything within reason.

That is different, a trunk has a physical key, the cops can get a warrant and force the person to give them the key and they can open the trunk. That was already established, if it's a physical key lock the law can get the key from you, if it's a combination type lock they cannot force you to open it for them. A password is not in anyway like a physical key, it is like a combination lock which means the law cannot force you to open it, if they want to check the contents they must find a way to open it themselves.

Guest said:

Ahem..."I cannot recall."

Guest said:

The right to remain silence is the right to remain information known only to yourself, even if it could incriminate you. With today's techonology, computing devices have become an extension of the users themselves, pretty much their "second brain". I personally believe any object, file cabinet or individuals brain (see fMRI lie detectors) that is YOUR INFORMATION, information specifically, then it is privy only to you and the Governement should not be allowed to force you to introduce it to have you incriminate yourself. The prospect of forcing defendants to incriminate themselves undermines the entire reason our Judicial System was created; to allow defendants to defend themselves, even if it means they withhold THEIR evidence that may prove their guilt. It's should not be a court where the defendant is forced to build a case against themselves because the prosecution can't do so by their own means while not infringing on the defendants rights.

JudaZ said:

Guest said:

the defendant is wrong.

it is not a right against self-incrimination.

imagine, one is accused of kidnapping someone and putting the victim in the trunk of a car.

can the kidnapper claim that he cannot open the trunk because he may incriminate himself?

the state has the right to "inspect" everything within reason.

Actually not being a lawyer I'm guessing that you actually could refuse to open the trunk in such a case.

A court order gives the police the right to open the trunk, but thay cant force you to do so personally (but I could be wrong) because it could incriminate yourself.

Never ever seen anyone being forced to give access to their home to be searched, but it does not matter because if the court have given out the right to authorities to do so, they will break down the door to execute the search warrant.

when in comes to encrypted harddrives, same logic should apply (if it actually does so in other cases and I am amusing correct )

Can't force you to decrypt the drive, but hold you in contempt of court if you refuse. Or the police can try and gain access to it ..if they have the skills

NTAPRO NTAPRO said:

:o Gotta learn about that encryption stuff

Guest said:

If an encrypted drive is an extension and repository of one's private thoughts, like a diary, then its contents could very easily be misinterpreted and turned against oneself, if revealed. Therefore, the state should accept its hard luck and look elsewhere for evidence. After all, it's a mortgage scam they are investigating, not a dead body locked in an encrypted car trunk.

Guest said:

Her name sounds Romanian, so I suspect she is Romanian, like me. I'm a bit surprised to find out about this, usually we leave the crimes and infractions to our politicians and corrupt government officials.

Now about this ruling, I doubt it will be held after an appeal as it is highly irregular and unconstitutional. The police and authorities have every right to investigate, seize and search for evidence. However they have absolutely no right in making you in way to provide that evidence - it would be torture plain and simple.

Holding an accused in contempt because of refusal to offer access to encrypted data is reasons and basis for firing that judge. The obligation of the accused is to only submit the laptop in question to the police, FBI or whatever else agency deems it interesting to have a crack at it.

Furthermore the innocent till proven guilty principle is still in effect, forcing the accused to offer access to her laptop constitutes a premise to raise the objection that she has already been found guilty.

Guest said:

I think a couple of points that must be made.

First is that we have rights and just because a Judge tries to abuse those rights, does not change them, and the woman should stand up for her rights, not give the password, and then sue the court for infringing her constitutional rights. Some of the problems lately have been that people are not differentiating American citizens from terrorist and other foreign nationals, the constitution sets rights for Americans.

Second to get a warrant you need to have some evidence to a crime, a judge does not have to grant a warrant and they often don't when police, FBI, etc. don't have enough reason to support its issue.

We in American live by laws that are made to protect us from illegal search and seizure, and our laws were written to protect us, sometimes a criminal will go free but it has to be that way to protect the innocent.

We have an obligation to do what we can to protect those rights and this woman should do everything she can to make sure her rights are not infringed, and I'm sure she can get help from a lot of organizations to make sure her rights are upheld.

Guest said:

she gave up the goods and the fbi couldnt handle it, now it is only right for the courts to drop it about time someone made something that is truely safe!! good on her plus 100million love and **** off to the egotistical greedy sons of bitches

Load all comments...

Add New Comment

TechSpot Members
Login or sign up for free,
it takes about 30 seconds.
You may also...
Get complete access to the TechSpot community. Join thousands of technology enthusiasts that contribute and share knowledge in our forum. Get a private inbox, upload your own photo gallery and more.