Judge: Fifth Amendment doesn't protect encrypted hard drives

By Timothy B. Lee

A federal judge has ruled that a Colorado woman can be compelled to decrypt her encrypted laptop so that the police can inspect it for incriminating evidence. The woman, Ramona Fricosu, is a defendant in a mortgage scam case. She had argued that the Fifth Amednment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop.

In previous cases, judges have drawn a distinction between forcing a defendant to reveal her password and forcing her to decrypt encrypted data without disclosing the password. The courts have held that the former forces the defendant to reveal the contents of her mind, which raises Fifth Amendment issues. But Judge Robert Blackburn has now ruled that forcing a defendant to decrypt a laptop so that its contents can be inspected is little different from producing any other kind of document.

Fifth Amendment issues can also arise if acknowledging ownership of a laptop or the existence of relevant documents is itself incriminating. But the police had recorded a phone call between Fricosu and her husband in which she seemed to acknowledge ownership of the laptop and to reference incriminating material on it. Blackburn ruled that barring prosecutors from using the fact that she was able to decrypt the laptop as evidence against her in court would satisfy the Fifth Amendment concerns with compelled disclosure.

Fricosu's lawyer talked to CNET about the case and about his plans to appeal the ruling.

Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said.