If the government obtains a search warrant to seize your computer and later finds that it cannot get into the device because it is encrypted, does that search warrant require you to produce your password and allow access to investigators?
That is the crux of a case currently being fought between the Department of Justice and a Colorado woman accused of mortgage fraud.
Ramona Camelia Fricosu and her husband, Scott Anthony Whatcott, were indicted last year for preying on people in the Colorado Springs area who were about to lose their homes to foreclosure.
In the course of the investigation, the FBI executed search warrants on Fricosu’s home and seized her Toshiba Satellite M305 laptop. Upon inspection, however, they discovered that the device was encrypted, barring the agents access to its contents.
On May 6, the FBI asked a Colorado district court to compel Fricosu to enter her password into the computer. She did not actually need to tell the government her password; she “could enter the password without being observed,” according to the filing.
Her lawyers, and now the Electronic Frontier Foundation, however, argued that that would be tantamount to self-incrimination. In a Friday filing, the EFF pointed to the Fifth Amendment, which says that “no person … shall be compelled in any criminal case to be a witness against himself.”
“Decrypting data on a computer is a testimonial act that receives the full protection of the Fifth Amendment. This act would incriminate Fricosu because it might reveal she had control over the laptop and the data there,” EFF attorney Marcia Hofmann argued. “The government has failed to show that the existence and location of the information it seeks is a foregone conclusion.”
The government, however, argued that “it is undisputed that the contents of Ms. Fricosu’s encrypted drive are not protected under the Fifth Amendment because the files were created voluntarily and prior to the execution of the search warrant.” The contents of the computer have “evidentiary value,” the filing said.
DOJ went on to say that “public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these.”
Arguing legal points with the Department of Justice unfortunately means you’re aiding in establishing legal precedent which can be warped step-by-step into regulations used to abuse what little legal privacy we have. TSA and other hacks fronting for Homeland Insecurity use similar regs already being fought in courts around this land to steal your property and then require you to aid in that theft.
Though it’s not difficult to see the useful legal ends to which this case might be dedicated, it’s equally clear that our government offers no guarantee against abusive implementation of the same decisions for sleazy political ends.