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.
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