In the wake of the flood of recent mortgage/housing fraud, a police raid in Colorado resulted in a laptop seizure they feel may contain evidence to help a case. Turns out it’s encrypted. Citing suspicion of nastiness contained therein, the U.S. Government has asked a federal judge to compel the owner, Ramona Fricosu, to enter the passphrase to decrypt it. She says “no”, citing 5th amendment protections.
In the U.S., the 5th Amendment “protects a person ... against being incriminated by his own compelled testimonial communications”, and so becomes the crux of the dispute. This harkens back to the “Lock vs. Safe” argument, where a strongbox key can be considered physical evidence, and therefore is subject to subpoena, but a combination to a safe can be considered a “product of the mind” and is, therefore, exempt from subpoena. In this case, Ms. Fricosu’s passphrase might be found to be a “product of the mind”, making it difficult to compel her to produce it.
The Electronic Frontier Foundation (EFF), a non-profit digital civil liberties organization, submitted an AMICUS CURIAE regarding the case, stating “The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity.”
Compelling her to produce the passphrase also supposes that she “remembers” it and can produce it. If, for example, she has “forgotten” it, it may introduce more complexity to the argument. It remains to be seen how the case will progress, but if decided against Ms. Fricosu, the case may set a precedent that’s quite possibly far-reaching, so expect the community to watch this case closely.
