A Federal court ruling this week by Judge Robert Blackburn, of Peyton, Colorado, says that you can be ordered by the court to provide the password to decrypt encrypted data, or face contempt of court, and that being forced to reveal your passphrase does not violate the Fifth Amendment (the 5th Amendent includes, among other things, the right against self-incrimination).
In the ruling, Judge Blackburn ordered Ramona Fricosu, whose laptop hard drive is encrypted with PGP, and who is charged with taking part in a mortgage scam, including charges of wire fraud, bank fraud, and money laundering, to decrypt her hard drive or face, among other sanctions, contempt of court.
The order states that Fricosu must decrypt her hard drive, providing prosecutors (and her defense attorney) with access to any unencrypted files on the hard drive. Legal commentators say that it’s similar to a defendant being required to provide the key to a safe in which incriminating documents may be stored.
Said Judge Blackburn, “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.”
In other words, prosecutors are demanding unencrypted files that are on the laptop, and the hard drive itself is protected by an encryption system (PGP).
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Said Fricosu’s attorney, who has in the past represented the author of PGP himself, Phil Zimmerman, “I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals. I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”
Dubois adds that it’s possible that his client may be unable to decrypt the laptop, for any number of unspecified reasons.
“If that’s the case,” said Dubois, “then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do.
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