Civil-liberties groups nationwide have taken notice, saying the case tests the strength of rights against self-incrimination in a digital world. Prosecutors, meanwhile, say that allowing criminal defendants to beat search warrants simply by encrypting their computers would make it impossible to obtain evidence in an age when clues are more likely held within a hard drive than a file cabinet.
The answer may turn on whether the Judge decides the password should be viewed as a key to a lockbox, in which case there is no 5th Amendment protection, or as a combination to a safe.
While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the "expression of the contents of an individual's mind" — is.
The Government, in its motion (available on PACER) says it isn't asking her to divulge the password, just to use it to unlock the computer:
This Application seeks an order requiring Ms. Fricosu to make available the unencrypted contents of the Subject Computer. This could be accomplished by having the encrypted Subject Computer available in the courtroom. Upon order of the court, Ms. Fricosu could enter the password without being observed by the government, or otherwise provide the unencrypted contents of the Subject Computer by means she
chose.
The Government adds:
If the requested relief is granted, the government would arrange to have computer forensic personnel standing by to prepare a forensic image of the unencrypted version immediately. The unencrypted version could be further copied for each of the defendants.
According to the Government's motion:
®equiring Ms. Fricosu to provide the Government with access, by entering the necessary encryption keys to the digital media that the Government already possesses pursuant to a valid search and seizure warrant, amounts to compelling Ms. Fricosu only “to surrender the key to a
strongbox containing incriminating documents.”
The Government seems to concede Ms. Fricosu has a fifth amendment privilege as to the act of production of the unencrypted contents, and to get around that, it asked the court to grant her limited immunity, meaning immunity only as to act of producing the key and not what it discovers on the computer as a result of it.
EFF filed an amicus brief (available here) supporting Fricosu. It argues forcing a defendant to decrypt her laptop to assist a criminal investigation against her erodes the protections of the 5th Amendment.
"Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."
It also argues the limited grant of immunity is insufficient. It says for the immunity to comply with the scope of the 5th Amendment privilege, it would have to include the evidence on the computer derived from her act of production.
The government’s offer of limited immunity—with no guarantee against use or derivative use of the information Fricosu would be forced to supply— is not comprehensive enough to secure Fricosu’s Fifth Amendment rights. She is therefore justified in refusing to provide the password.
A third hearing on the issue was held yesterday and the Court took the matter under advisement.
