Does 5th Amendment Protect Computer Files From Decryption?

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A U.S. District Court in Colorado recently considered whether the constitutional privilege against self-incrimination extends to the compelled production of decrypted computer files. It is beyond dispute that the government may not force a suspect to provide an encryption password if the password would provide a necessary link in the chain of evidence leading to the suspect’s indictment. A much more difficult question is whether the government may force a suspect to use the password to produce decrypted computer files that contain incriminating evidence.

In United States v. Fricosu, Judge Robert Blackburn held that the government can indeed force a suspect to use an encryption password if the testimony implicit in the use (i.e., the act of producing decrypted files) is already known to the government and/or the implicit testimony will not incriminate the suspect. The court ordered the defendant to produce decrypted files from her laptop because the government already knew (based on uncompelled testimony) that the files were on a computer that belonged to her and for which she had the password. Judge Blackburn’s decision is the most recent in a growing body of case law that attempts to thread the needle as to when the Fifth Amendment protects against the court-ordered production of computer data.

In 2010, FBI agents investigating a mortgage-fraud scheme executed a search warrant at the home of Ramona Fricosu. The agents seized six computers, one of which was a laptop that apparently belonged to Fricosu. When the agents turned it on, they were able to view the disk encryption screen, which identified the computer by Fricosu’s first name. But without Fricosu’s password, the agents could not access the encrypted files.

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