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Data Encryption and the Fifth Amendment

By J. DeVoy

If you have encrypted data that is seized during an investigation, and law enforcement officers are incapable of decrypting it, can you refuse to provide the codes to remove encryption?  The Electronic Frontier Foundation (“EFF”) believes so, and recently submitted an amicus brief to that effect in U.S. v. Fricosu, Case No. 2:10-cr-00509-01-REB (D. Colo.) (hey, cool, I’m admitted there! – Ed.).

Here’s a summary of the case from EFF’s press release:

Ramona Fricosu[] is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself.

The theory is that decrypting a computer is itself a testimonial act: It represents that the defendant had control or access to the computer, and possibly the files within.  Even on a shared computer, providing a decryption code can be damning evidence.  The EFF contends that forcing someone to decrypt their computer forces them to choose between lying, contempt of court, and self-implication – the exact situation the Fifth Amendment is supposed to prevent.

This is a very interesting case, and I can support it to some extent.  I would disagree with the EFF if it claimed that forced decryption was problematic in civil cases, where the Fifth Amendment is little more than an abstraction, since the opposing party is not the state’s prosecutorial arm.  So, torrenters, take note: This is not for you – unless you get charged with criminal copyright infringement.  That’s pretty uncommon in and of itself, too, so you’re really screwed if that happens.

Read the EFF’s full amicus brief here.

H/T: Will

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