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Court rules Americans can be ordered to decrypt data

updated 10:20 pm EST, Mon January 23, 2012

Judge says notebook data can be compelled

Colorado federal Judge Robert Blackburn on Monday set a precedent with an order requiring that a woman decrypt data on the hard drive of her Toshiba Satellite M305 notebook by February 21. The official dismissed a defense by Ramonia Fricosu's attorneys that argued it would violate the Fifth Amendment's rule against self-incrimination, CNET said. The All Writs Act of 1789, which had already been used to compel phone companies in surveillance requests, was also valid with locked down storage.

Fricosu had been accused of a mortgage fraud and is believed to have evidence proving this on the notebook. She had encrypted it with PGP Desktop, however, and frustrated investigators when she refused to provide the password. She had contended that she might incriminate herself by giving the police the tools to access her system. For those arguing against her, the password request isn't different than using a warrant to compel a suspect with a locked door to open it.

Fricosu and her attorney Phil Dubois were hoping to stay the order long enough to file an appeal with the 10th Circuit Court of Appeals. Dubois noted that Fricosu might not even be technically capable of decrypting the notebook, in which case no amount of compulsion would work.

The case, if Fricosu either drops appeals or loses at the Supreme Court levels, could set a legal precedent for any future access to data. Encryption would then be limited to its original purpose of protecting against theft and wouldn't by itself be a tool to defend against government searches, including on mobile.



By Electronista Staff
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Comments

  1. chas_m

    Joined:

    +10

    Hmmm

    Wondering if the judge is even mildly aware of the Constitution. Protection against self-incrimination seems pretty clear to me, but I guess I'm just old-fashioned. I'm certainly not rooting for this likely mortgage-scumbag, let's make that clear.

  1. qazwart

    Fresh-Faced Recruit

    Joined: Apr 2001

    -1

    Constitutional Issue?

    If she had this information as plain text in a notebook, the Constitution would offer her no protection from preventing the police from seizing the notebook and using the information in it against her. She can't be compelled to testify against herself, and she didn't have to reveal that she has a computer. However, all evidence legally seized can be used.

    The question really is a technical one: Can she be compelled to reveal how to access information once the police know about it. For example, can the court order you to open a door to a safe that the police have probable cause to believe that it contains evidence?

    If the court can order you to turn over a key to a door or a combination to a safe, it can order you to turn over the key to a encrypted file.

  1. efithian

    Fresh-Faced Recruit

    Joined: Apr 2004

    0

    Lost Key?

    Assuming I was not guilty of anything, I might just lose the key. If I lose the key to my front door, the police can break it down to enter. Let them break down the door to the laptop. Lots of luck!

  1. Roehlstation

    Fresh-Faced Recruit

    Joined: Aug 2001

    0

    It doesn't say

    It has to be decrypted correctly.

    (3 wrong tries and data somehow gets destroyed)

  1. facebook_Aryu

    Via Facebook

    Joined: Jan 2012

    +3

    I tend to agree with efithian.

    If I have an item that was buried in one of the Iowa cornfields, it does not seem constitutional to force me to give someone the location, thus the item itself, that could incriminate me. I am innocent until proven guilty - ok, go ahead, prove it!

    The purpose of law is not to make it easier for law enforcement. (Don't even get me started about ticketing parked vehicle owners rather than the driver, the real offender.)

    If it is legal to demand the innocent person to give up information, where does it end? How much force or persuasion can be used on someone? Can they be detained or threatened? If someone clearly proclaims he killed someone, can they force him to say who and where? Can an innocent person be held indefinitely in contempt of a court order even though there is no proof of his guilt?

    I thought we lived in a better country. Time to move?

  1. facebook_ZungHoo

    Via Facebook

    Joined: Jan 2012

    -1

    Sad

    I hope she stands strong and refuses to cooperate!
    privacy-toolz.com

  1. facebook_Matt

    Via Facebook

    Joined: Jan 2012

    0

    Go to prison for forgetting a password?

    What if you truly forget the password. I have a secure image with my tax data, and I'm always forgetting what the password is since I only use it once a year (I have it written down at my house).

  1. Flying Meat

    Dedicated MacNNer

    Joined: Jan 2007

    +3

    I'm obviously not a lawyer, but

    So, if the accused was arrested with the laptop at the time, then it is fair game. She can refuse, of course, but will likely get charged with contempt, or obstruction, but the case of mortgage fraud would still need to be proven.
    If a warrant was issued and the laptop seized in the search, then it is fair game as well. The same options would be available.

    However, this is not true in the way it was written:
    "...the password request isn't different than using a warrant to compel a suspect with a locked door to open it."
    A request is not a warrant. A request is not compulsory. A demand or order, however...

  1. RiquiScott

    Fresh-Faced Recruit

    Joined: Oct 2007

    0

    TrueCrypt to the rescue

    This sounds like a good argument for an encryption program that supports hidden volumes. If you're compelled to provide a password, you give them the password that opens up the "decoy" volume, and there's no way to even tell that there's another volume present, much less what's in it.

  1. facebook_Nick

    Via Facebook

    Joined: Jan 2012

    0

    comment title

    Tough question. I would say that if the police simply asked her to provide the password and she refused then they have no recourse. BUT if they could provide the judge with reasonable a reasonable claim that there was evidence on the computer and the judge issued a warrant/order then, yes, she could be ordered to provide the password.

    Of course, then the question that comes up is whether anything else found on the laptop could be used to incriminate her of additional crimes. It's definitely a question that needs to be considered.....

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