Judge orders woman to provide encryption password to hard drive

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**Ouze**

Judge orders woman to give up password to hard drive
By Suzanne Choney

In the future, your hard drive may not be your hard drive: A federal judge has ruled that a Colorado woman, charged in a mortgage scam case, must turn over the password needed to decrypt her hard drive so that police can view the files on it.

Ramona Fricosu was given until Feb. 21 to comply with the order by U.S. District Court Judge Robert Blackburn. The judge said Fricosu's defense — the Fifth Amendment's right against self-incrimination — did not apply in the case, in which she is charged with bank fraud, wire fraud and money laundering.

"I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," the judge said in his ruling Tuesday, as reported by CNET.
The Electronic Frontier Foundation, a digital civil liberties organization that filed an amicus brief on Fricosu's behalf, had argued that Fricosu should not be compelled to give up her password because it would violate her Fifth Amendment right, and there was no immunity "offered for loss of this protection."

In addition, the EFF said, the government had not specified what it was looking for on the Fricosu's laptop, making it seem like an "evidence-fishing trip."
But the U.S. Attorney's Office said in court documents that if Fricosuwasn't ordered to unlock her computer, it would result in a "concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) 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.”
As CNET's Declan McCullagh wrote, "The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach."

source.

I didn't think you could be compelled to divulge products of the mind?

**Ahtman**

If she kept the records in a filing cabinet instead of a hard drive would it still fall under the fifth amendment?

**biccat**

Ahtman wrote:If she kept the records in a filing cabinet instead of a hard drive would it still fall under the fifth amendment?

The documents themselves are not protected, rather the password is what is sought to be protected. The government doesn't want the password, they want the contents of the disk (filing cabinet).

The Fifth Amendment problem here is that in disclosing the password to the computer she admits to having control of the contents of the laptop. However, the government has granted immunity to the disclosure of the password on the ownership issue (they have plenty of evidence to support that anyway), so I don't think the Fifth Amendment argument here is very strong.

**Zyllos**

Ahtman wrote:If she kept the records in a filing cabinet instead of a hard drive would it still fall under the fifth amendment?

That is a pretty good question, Ahtman. I feel there is no difference between the two mediums.

Having a year of Ethics in Computing in college, I would stand to say that the Fifth Amendment has merit here as it is self incrimination by giving information over to law enforcement to continue their investigation.

Whats wrong with the investigators securing a warrent for the data, asking for the passphase, and if no compliance, then arrest for obstruction of justice? I find that a perfectly valid solution to the problem and adheres to the current standings of the law.

**Frazzled**

"I have no recollection."
-Frazzled, on Life.

**Zyllos**

biccat wrote:
Ahtman wrote:If she kept the records in a filing cabinet instead of a hard drive would it still fall under the fifth amendment?

The documents themselves are not protected, rather the password is what is sought to be protected. The government doesn't want the password, they want the contents of the disk (filing cabinet).

The Fifth Amendment problem here is that in disclosing the password to the computer she admits to having control of the contents of the laptop. However, the government has granted immunity to the disclosure of the password on the ownership issue (they have plenty of evidence to support that anyway), so I don't think the Fifth Amendment argument here is very strong.

Documents themselves are not protected? In reference to what? I am inclinded to say that all information regarding an individual is protected until some warrent is authorized for the search.

What your saying is that anyone can just waltz into your home in search of documents to incriminate you for any unlawful practices and actions just because you kept them. At least that is how I understand it.

**Ahtman**

I think the argument is that by admitting she knows the password she is also admitting to being connected to all evidence found within. As biccat pointed out the government has given immunity on that point, as I imagine they have a lot more evidence that will tie her to the documents and want to avoid an appeal on this issue. At least that is what I am getting out of it.

**biccat**

Zyllos wrote:Documents themselves are not protected? In reference to what? I am inclinded to say that all information regarding an individual is protected until some warrent is authorized for the search.

Documents themselves are not protected by the 5th amendment right against self incrimination. If you write something down it can be produced as evidence against you.

Zyllos wrote:Whats wrong with the investigators securing a warrent for the data, asking for the passphase, and if no compliance, then arrest for obstruction of justice? I find that a perfectly valid solution to the problem and adheres to the current standings of the law.

The problem is asking for the passphrase. If she gives them the passphrase then she is admitting to ownership.

What the government did here was ask for the contents of the computer. She didn't have to give up the passphrase, she only had to deliver the contents.

**Monster Rain**

While I lack the book learnin' to defend this legally, I really don't have an ethical problem with this story.

**Ouze**

biccat wrote:What the government did here was ask for the contents of the computer. She didn't have to give up the passphrase, she only had to deliver the contents.

... ok, I see the distinction now.

So... could she be ordered to produce a password, in your opinion - if they had?

What if she says she doesn't know the password? Could they hold her in contempt indefinitely?

**mattyrm**

It's no big deal as far as im concerned. If i had nothing to hide i would happily give them the password, and if i did have something to hide they should be allowed to force me to give them it!

Some Americans take the whole fething "freedom" thing way too far. Your right to freedom shouldn't assist you in being a criminal. I say the same when they laugh because some of our streets have CCTV cameras in them. I don't care because I don't do illegal gak in the highstreet, if it deterred people from mugging old ladies then im all for it.

Put it a more physical way. If you are a pedo and you have a five year old locked in your basement but the door key is jammed up your ass, should the judge be allowed to force you to give it to the authorities?

Look at it this way..

**Zyllos**

biccat wrote:
Zyllos wrote:Documents themselves are not protected? In reference to what? I am inclinded to say that all information regarding an individual is protected until some warrent is authorized for the search.

Documents themselves are not protected by the 5th amendment right against self incrimination. If you write something down it can be produced as evidence against you.

Ok, I understand that. But that does not mean that you can ask someone to produce documents that self incriminate, which giving the documents or passphase, at least how I feel, does violate her 5th Amendment right.

Zyllos wrote:Whats wrong with the investigators securing a warrent for the data, asking for the passphase, and if no compliance, then arrest for obstruction of justice? I find that a perfectly valid solution to the problem and adheres to the current standings of the law.

The problem is asking for the passphrase. If she gives them the passphrase then she is admitting to ownership.

What the government did here was ask for the contents of the computer. She didn't have to give up the passphrase, she only had to deliver the contents.

Well, of course giving the passphrase up is admitting to ownership. But ownership of documents does not prove wrong doing. And the government asking for the contents of the computer, which was fulfilled, puts us where in the situation? I thought this whole story was about her not having to give up the passphrase due to 5th Amendment as self incriminates, which to me seems to have nothing to do with giving up the contents of the computer.

I must not be seeing something.

Automatically Appended Next Post:

mattyrm wrote:It's no big deal as far as im concerned. If i had nothing to hide i would happily give them the password, and if i did have something to hide they should be allowed to force me to give them it!

Some Americans take the whole fething "freedom" thing way too far. Your right to freedom shouldn't assist you in being a criminal. I say the same when they laugh because some of our streets have CCTV cameras in them. I don't care because I don't do illegal gak in the highstreet, if it deterred people from mugging old ladies then im all for it.

Put it a more physical way. If you are a pedo and you have a five year old locked in your basement but the door key is jammed up your ass, should the judge be allowed to force you to give it to the authorities?

Look at it this way..

I feel its more to give the balance of judicial and executive power back to the hands of the people by making the government having to give due process in providing credible evidence before proceeding with an investigation. Has nothing to do with hiding behind freedom to perform criminal activities. That is the whole point of the judicial system is to see if the law is enforced correctly to keep the governing body from trampling individual citizens while capturing the criminals.

**biccat**

Ouze wrote:... ok, I see the distinction now.

So... could she be ordered to produce a password, in your opinion - if they had?

I don't think so.

The question is: is the passcode a "key" or a "combination"? You can be compelled to produce a key, the actual physical object used to grant access to a safe. A combination cannot be compelled.

Ouze wrote:What if she says she doesn't know the password? Could they hold her in contempt indefinitely?

Sure. At that point it's a question of fact: does she or does she not know the password? I assume the cops have enough evidence to show that she owns the computer.

A more interesting question is: if she had set up a dummy account (passphrase A gives an innocent file, passphrase B gives the incriminating file), could she be compelled to produce the incriminating passphrase? I'm not sure.

Zyllos wrote:Ok, I understand that. But that does not mean that you can ask someone to produce documents that self incriminate, which giving the documents or passphase, at least how I feel, does violate her 5th Amendment right.

Well, your feeling is wrong, because this aspect of the law is clear. You can be compelled to produce documents that are incriminating, whether you were the author or not.

By "produce" I mean "deliver to the authorities," not "create."

**Kilkrazy**

mattyrm wrote:It's no big deal as far as im concerned. If i had nothing to hide i would happily give them the password, and if i did have something to hide they should be allowed to force me to give them it!

Some Americans take the whole fething "freedom" thing way too far. Your right to freedom shouldn't assist you in being a criminal. I say the same when they laugh because some of our streets have CCTV cameras in them. I don't care because I don't do illegal gak in the highstreet, if it deterred people from mugging old ladies then im all for it.

Put it a more physical way. If you are a pedo and you have a five year old locked in your basement but the door key is jammed up your ass, should the judge be allowed to force you to give it to the authorities?

Look at it this way..

The concern is more that if you aren't a paedo and don't have a child locked in your cellar, should the government be allowed to put you in jail for 20 years for refusing to give up the key.

It is a tricky one, though, because obviously any sensible criminal would try to hide the evidence of their activities by encrypting it if they could.

**mattyrm**

Kilkrazy wrote:
mattyrm wrote:It's no big deal as far as im concerned. If i had nothing to hide i would happily give them the password, and if i did have something to hide they should be allowed to force me to give them it!

Some Americans take the whole fething "freedom" thing way too far. Your right to freedom shouldn't assist you in being a criminal. I say the same when they laugh because some of our streets have CCTV cameras in them. I don't care because I don't do illegal gak in the highstreet, if it deterred people from mugging old ladies then im all for it.

Put it a more physical way. If you are a pedo and you have a five year old locked in your basement but the door key is jammed up your ass, should the judge be allowed to force you to give it to the authorities?

Look at it this way..

The concern is more that if you aren't a paedo and don't have a child locked in your cellar, should the government be allowed to put you in jail for 20 years for refusing to give up the key.

It is a tricky one, though, because obviously any sensible criminal would try to hide the evidence of their activities by encrypting it if they could.

Yeah but why is that a concern?

If a copper showed up here and wanted to check my basement i would let him. Id even make him a cup of tea.

If i had a meth lab but they were after a kid and found it by chance.. again, that's my gak luck. I don't think they should be banned from checking.

**d-usa**

What if you had a safe filled with the finest cocaine money can buy, and you can only open it with a key.

The Government has a search warrant to look inside the safe, but only you know where they key is.

Can they force you to reveal the location of the key? Or should/would you be protected under the 5th and have the ability to refuse to speak?

**Zyllos**

biccat wrote:
Ouze wrote:... ok, I see the distinction now.

So... could she be ordered to produce a password, in your opinion - if they had?

I don't think so.

Oh, I thought the judge did ask her to produce a password?

The question is: is the passcode a "key" or a "combination"? You can be compelled to produce a key, the actual physical object used to grant access to a safe. A combination cannot be compelled.

There is a difference? Both grand access to a safe location, right?

Ouze wrote:What if she says she doesn't know the password? Could they hold her in contempt indefinitely?

Sure. At that point it's a question of fact: does she or does she not know the password? I assume the cops have enough evidence to show that she owns the computer.

Makes sense to me, as long as they have the documentation giving evidence they lawfully obtained the computer with documents that could prove vital to the case.

A more interesting question is: if she had set up a dummy account (passphrase A gives an innocent file, passphrase B gives the incriminating file), could she be compelled to produce the incriminating passphrase? I'm not sure.

Wouldn't that just boil down to lying? As you did not provide what was specified?

Zyllos wrote:Ok, I understand that. But that does not mean that you can ask someone to produce documents that self incriminate, which giving the documents or passphase, at least how I feel, does violate her 5th Amendment right.

Well, your feeling is wrong, because this aspect of the law is clear. You can be compelled to produce documents that are incriminating, whether you were the author or not.

By "produce" I mean "deliver to the authorities," not "create."

I am perfectly happy with that outcome assuming they had a warrent. If you start an investigation saying "Person X broke the law. Give me all your documention on Y date.", Person X does not have to provide that documention of Y date until a warrent is given due to self incrimination.

Automatically Appended Next Post:

d-usa wrote:What if you had a safe filled with the finest cocaine money can buy, and you can only open it with a key.

The Government has a search warrant to look inside the safe, but only you know where they key is.

Can they force you to reveal the location of the key? Or should/would you be protected under the 5th and have the ability to refuse to speak?

I feel he should not until the warrent includes the key to the safe itself due to the 5th.

**biccat**

d-usa wrote:What if you had a safe filled with the finest cocaine money can buy, and you can only open it with a key.

The Government has a search warrant to look inside the safe, but only you know where they key is.

Can they force you to reveal the location of the key? Or should/would you be protected under the 5th and have the ability to refuse to speak?

They can force you to produce the key.

Zyllos wrote:Oh, I thought the judge did ask her to produce a password?

No, she was ordered to produce the information. If this requires producing the password (if she won't type it in herself, for example), then she must do so.

Either the journalist writing this story doesn't understand the distinction (likely) or he's intentionally trying to stir up controversy (also likely, given that he's relying on the EFF, who does understand the distinction [i]and[i] is trying to stir up controversy).

**d-usa**

Zyllos wrote:

d-usa wrote:What if you had a safe filled with the finest cocaine money can buy, and you can only open it with a key.

The Government has a search warrant to look inside the safe, but only you know where they key is.

Can they force you to reveal the location of the key? Or should/would you be protected under the 5th and have the ability to refuse to speak?

I feel he should not until the warrent includes the key to the safe itself due to the 5th.

But even if the warrant includes the key. A warrant just states where they can search and what they can seize. If they have a warrant to search your house for a gun used in a murder, that does not mean that you are compelled to lead them to the gun, I think...

Automatically Appended Next Post:

biccat wrote:
d-usa wrote:What if you had a safe filled with the finest cocaine money can buy, and you can only open it with a key.

The Government has a search warrant to look inside the safe, but only you know where they key is.

Can they force you to reveal the location of the key? Or should/would you be protected under the 5th and have the ability to refuse to speak?

They can force you to produce the key.

So the lesson is: get a combination lock for your fine cocaine?

**Andrew1975**

Can't they just hack into the computer?

**Rented Tritium**

If she says she can't remember, they have no reasonable way to prove she's lying, so the obstruction charge won't stick.

**Zyllos**

biccat wrote:
d-usa wrote:What if you had a safe filled with the finest cocaine money can buy, and you can only open it with a key.

The Government has a search warrant to look inside the safe, but only you know where they key is.

Can they force you to reveal the location of the key? Or should/would you be protected under the 5th and have the ability to refuse to speak?

They can force you to produce the key.

Ah, that is the difference between our arguments. I still feel that this is different because what if that safe has another safe in it? Say they found the evidence they needed but there is still another locked safe inside. I feel they could not compel anyone to produce the key to that smaller safe inside without another warrent. And on that ground, I say they can not compel you to provide the key to the original safe if they did not specify that in the warrent due to the 5th.

And maybe that is where the 5th comes in, maybe the 5th has nothing to do with what I am saying and more of the limitations of searching one's properity. In that case, I could say that arguing the 5th might be a bit wishy-washy (sp? hah).

**Rented Tritium**

I want to point out that an encryption key is not a key like for a door. It's a key to interpret data in a specific way.

They want the contents of a harddrive? They have that right now, it contains a truecrypt volume made of 0s and 1s. They have access right now. They're just asking her to make sense of it for them. That's not something she has any obligation to do. If you write a bunch of notes in code, the court can't make you explain them.

Automatically Appended Next Post:

Andrew1975 wrote:Can't they just hack into the computer?

They can, it would just take centuries. This is not a password to get in, it's an encryption key.

Automatically Appended Next Post:
The correct analogy is not a safe, the correct analogy is coded notes. Every 5th letter is correct, the court doesn't know that but you do. They can't make you tell them which letter is correct. They have the document. Knowing how to interpret it is entirely up to them.

**Zyllos**

I found something that might be useful.

Wikipedia wrote:In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment. In Boucher, production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant.[49]

[49] - In re Grand Jury Subpoena to Sebastien Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb 19, 2009).

Automatically Appended Next Post:
Ok, so basically, what I got from that document is that if I outright denied that there is no password or passphrase to the document, they have no basis to comple a person for the passphrase or password in the first place. But if I do, then I can not ask for 5th rights because I already acknowledged that the documents are indeed mine, no matter what you find and thus must provide information in a readable format as it is not self incriminating to give unencrypted documents that I already said that were mine.

Did I read that right?

**Tyyr**

It is a tricky one, though, because obviously any sensible criminal would try to hide the evidence of their activities by encrypting it if they could.

If she was a sensible criminal she'd have the stuff that could send her to jail in an encrypted file that bombs the harddrive if a certain password is put in.

**Zyllos**

Apparently adding factual evidence basically ends the thread.

**Melissia**

mattyrm wrote: Some Americans take the whole fething "freedom" thing[...]

... not far enough.

**dogma**

Rented Tritium wrote: If you write a bunch of notes in code, the court can't make you explain them.

Yes they can.

**mattyrm**

Melissia wrote:
mattyrm wrote: Some Americans take the whole fething "freedom" thing[...]
... not far enough.

Please elaborate im curious where this is going.

**Zyllos**

mattyrm wrote:
Melissia wrote:
mattyrm wrote: Some Americans take the whole fething "freedom" thing[...]
... not far enough.

Please elaborate im curious where this is going.

Refer to my post above...

I feel its more to give the balance of judicial and executive power back to the hands of the people by making the government having to give due process in providing credible evidence before proceeding with an investigation. Has nothing to do with hiding behind freedom to perform criminal activities. That is the whole point of the judicial system is to see if the law is enforced correctly to keep the governing body from trampling individual citizens while capturing the criminals.