Can federal prosecutors force you to unlock your computer for them?
That is the question being debated in a case in Colorado, in which Justice Department officials have demanded that a defendant, Ramona Fricosu, decrypt her laptop so that they can examine it for potential evidence against her, CNET News reports. There have been few rulings on this issue and so the decision of the Colorado federal district court will have a large impact on future cases.
Fricosu and civil liberties groups argue that to force someone to open her computer to the government violates the Fifth Amendment’s right to remain silent. Prosecutors contend that a defendant decrypting her own computer is the legal equivalent of opening a safe or providing DNA evidence, activities which are not protected under the Fifth Amendment.
The DOJ also claims that giving computer passwords constitutional protection would give a powerful tool to criminals looking to conceal evidence from the government.
“Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals…that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible,” prosecutors argued, CNET News reported.
The computer was seized by the government in a May 2010 raid on the Fricosu’s home, along with several other computers and digital storage devices. Fricosu and her husband have been charged with crimes relating to fraudulent real estate practices. After the raid, the government applied for and received another search warrant to specifically examine the contents of one of the laptops, but could not get passed the device’s encryption. It was not until a year later, this May, when prosecutors asked the court to force the defendant to access the computer’s information for them. Prosecutors said they do not want the password, which some courts have ruled is protected, just the information it is protecting.
The digital civil liberties group Electronic Frontier Foundation filed an amicus brief on the side of the defendant. The group argues that if Fricosu is forced to access the computer using her password, that will amount to a forced admission that the computer and its information belongs to her, and she possible would incriminate herself.
“As businesses and individuals alike recognize the need to protect the privacy and security of the information of their computers, more and more people will find themselves in Fricosu’s situation,” the group said in its brief.
Prosecutors have given the Fricosu limited immunity in an attempt to get around the possible self-incrimination issue, but the foundation argues that it was not comprehensive enough.