Should the Fifth Amendment Protect Suspects from Coughing Up Laptop Encryption Keys?

Paul Lilly

A Colorado woman accused of a mortgage scam is refusing to disclose her encryption passphrase for a laptop police found in her bedroom during a raid, and the way this plays out could set a precedent for future cases. The Department of Justice asked a federal judge to force the defendant, Ramona Fricosu, to decrypt the laptop, which brings up the question of whether or not such an order would be legal under the Fifth Amendment.

Fricosu's attorney, Philip Dubois, stated in a brief that defendants can't be ordered to help the government decrypt files, CNet reports . Dubois likens the notion to that of forcing a defendant to decrypt a handwritten diary that was written in code. The Justice Department obviously sees things from a different angle.

"Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these," the department claims. "Failing to compel Ms. Fricosu amounts to 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."

Prosecutors in the case point out that they're not actually asking for the passphrase itself, only that Friscou type it in and unlock her laptop. They only want the data that's inside.

This is a topic that has yet to be settled in court, though it's often been discussed. According to CNet, prosecutors view the passphrase as being analogous to that of someone possessing a key to a safe filled with potentially incriminating documents. Legally, they can be forced to hand over the key. In addition, the U.S. Supreme Court has ruled that defendants can be forced to provide fingerprints, blood samples, and voice recordings.

Privacy advocates point to other Supreme Court cases, ones that conclude Americans can't be forced to give "compelled testimonial communications." To them, the Fifth Amendment applies.

What's your opinion on all this?

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