Can criminal suspects be compelled to decrypt their laptops? Or does the Fifth Amendment prohibit such orders?
They can, and it doesn't, according to a federal judge in Colorado.
Judge Robert Blackburn has ordered Ramona Fricosu to provide prosecutors with an unencrypted copy of her laptop hard drive by February 21. The encrypted laptop is believed to contain evidence of wire fraud, bank fraud and money laundering.
Fricosu has adamantly refused to share her password, instead choosing to invoke the Fifth Amendment.
Despite support from a number of digital rights groups, Judge Blackburn declined to extend Fifth Amendment protection to Fricosu's encrypted laptop. He believes the right to avoid self-incrimination "is not implicated by requiring production of the unencrypted contents of the laptop."
His decision appears to be based on the "act-of-production doctrine" as described in United States v. Hubbell. In that case, the Court held that the Fifth Amendment protects against the compelled production of documents only when the act of producing the documents is incriminating unto itself.
The Court specifically noted that production communicates information about a document's existence, control and authenticity.
Judge Blackburn explained that none of these things are at issue. In fact, the government has proved with a preponderance of the evidence that the encrypted laptop belongs to Ramona Fricosu. Producing an unencrypted copy would not communicate any additional information.
Whether or not this was the right conclusion is up for debate. Prosecutors are thrilled with the result, as they worried criminals would begin encrypting all inculpatory evidence. But individual rights and privacy activists are hoping it will be overturned on appeal.
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