You might be familiar with the Fifth Amendment, which is often quoted in the press or used in movies and TV shows. You may have heard the line “I refuse to answer on the grounds that it may incriminate me”, or “I plead the fifth”.
Today, technology is pushing the boundaries of the Fifth Amendment, and a Federal Judge in Denver made a ruling that says giving up a password to an encrypted hard drive or computer does not fall under the umbrella or safety-net of pleading the fifth.
The case involves Ramona Fricosu, who was indicted on bank fraud. During in-jail phone calls with her ex-husband, who was also indicted, she made multiple references to her password protected laptop. Since those phonecalls are tape-recorded and become evidence, the prosecution wants access to the laptop to bolster its case against Fricosu. Fricosu’s attorney suggested that asking her client to give up the password falls under the Fifth Amendment, allowing Fricosu the freedom to refuse, based on the fact that it could incriminate her.
Here’s the actual text of the Fifth Amendment for reference:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
U.S. District Judge Robert Blackburn stated that since the police know it’s the defendant’s laptop, providing the password for it won’t give the court any information that they don’t already have:
[I]t is more likely than not that the computer belonged to and was used by Ms. Fricosu. Accordingly, I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the … laptop.
Ramona Fricosu’s attorney disagrees and has filed a motion to stay the case until they can appeal the Judge’s ruling. The Electronic Frontier Foundation also disagrees with the judgement, and anyone who has a password protected computer or hard drive is also wondering what this means moving forward in legal cases.
Technology is changing everything, including certain interpretations of the law, and landmark judgements like this could decide how cases like this are handled moving forward.
Sometimes the government can compel to to incriminate yourself, e.g. by giving handwriting samples, DNA samples, etc. That is more or less because you are producing an item as opposed to testifying against yourself. There is an exception, though, when it comes to documents called Act of Production Doctrine (Google it). Case law since US v. Hubbell 530 US 27 (2000) in a variety of cases demonstrates that for the government to even begin to have you produce a document that incriminates you, the government must identify that document with particularity. In this case, the government is asking Friscou to essentially produce every written communication, memo, e-mail, etc. within perhaps years. This is clearly not allowed and the government knows it. So it mentions Hubbell in its briefs and tries to claim that since it already has a copy of "the document" which is the whole hard drive, it is entitled to have Friscou decrypt her own hard drive because it knows "the documents" exist. For this ruling to even begin to stand, the judge should have required the government to specifically identify only those documents it claims it knows about and needs. Even then, I think the government has a losing battle on its hands. She will appeal and win.
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LikeThe judge is WRONG. Centuries of case law exist to PROVE IT. Must be a case of a judge still on Cheeeney's covert payroll.
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LikeScary. So now you're supposed to remember every password on every old machine, hard drive, USB stick, etc - otherwise you could end up in jail.
And the next step: prosecuting someone for owning scrambled, random data because they "refuse to decrypt it".
What is it with lawmakers and technology?
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