Laptop Encryption: Can You Plead the Fifth?

A Colorado court case could set a precedent on whether the right to remain silent extends to encrypted files.

The Justice Department wants a federal judge to rule that defendant Ramon Fricosu must decrypt a laptop that prosecutors believe has evidence showing her guilt in an alleged mortgage scam.

Fricosu’s lawyers say doing so could incriminate her, and thus she has the legal right to refuse to do so under the Fifth Amendment, specifically the best known section, which reads “nor shall [a person] be compelled in any criminal case to be a witness against himself.”

There is, to say the least, an element of confusion over how both the constitution and previous legal interpretations of it relate to computer encryption. The government lawyers believe the case should be likened to ordering a defendant to provide a key to a safe, which has been judged legal in the past.

The defense side counters that Fricosu is being required to provide a form of “compelled testimonial communications”. It’s preferred comparison is to a defendant asked to provide the combination to a lock on a safe, a request previous rulings have said cannot be mandatory.

With the ball back in the government’s court, the most important element may be that it’s request in the case is not for Fricosu to provide any information such as handing over a decryption key. Instead it wants her to decrypt the files herself, with nobody else seeing the decryption key. At that point the government would have the full legal right to look at the unencrypted files on the laptop, having lawfully seized it in the first place.

In previous high-profile cases on the matter, courts have ruled that defendants cannot be forced to hand over the encryption key itself (which isn’t the issue here.) The most directly relevant case, where prosecutors wanted to force the defendant to decrypt files, didn’t get as far as a ruling because the defendant complied.

It’s pretty clear this case is likely to go all the way to the Supreme Court if neither side backs down. Indeed, Colorado state officials already got the go ahead from the Assistant US Attorney General before seeking the court ruling.

(Picture credit: Boris Anthony, via Creative Commons license)

5 Responses to Laptop Encryption: Can You Plead the Fifth?

  1. Wait……..the gummint can force me to hand over a Key, a physical object, but cannot compel me to tell the the combination?????…(WTF is the legal difference?!!?!! …..but that is a for a different argument)….Combination….memorized numeric key…vs. encryption code…memorized numeric, [or alpha-numeric if you want to be picky…lol], key;……………………….ummmm, anybody else see any similarities?

  2. the person who has the encryption would, once they are told to encrypt the files would become an "expert witness" and would than be filed under becoming a witness and would not have to defend themselves.
    @ david, holding the key to something is physical evidence. withholding physical evidence is a federal crime, both for the plaintiffs and defendants which, when requested they must hand over to the opposition.

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