Is a laptop more like a closet or a memory?
That's the question being asked of a federal judge in Colorado by the U.S. Justice Department and the White House, both of which are pressing for a ruling forcing the defendant in a mortgage-fraud case to decrypt the hard drive of a laptop seized during her arrest.
A lawyer for the defendant, Ramona Fricosu, the Electronic Frontier Foundation (EFF) and civil rights groups said forcing someone to give up a password, or type it in, violates the Fifth Amendment rule against self incrimination because it forces the defendant to help gather information that might help the prosecution.
"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," according to EFF senior staff attorney Marcia Hofmann.
Not so, according to prosecutors and the DOJ.
A hard drive is a storage device, just like a closet, cupboard or other container and should be subject to the same rules, prosecutors charge.
With a search warrant or subpoena, police and prosecutors can enter a house against the owner's wishes, search the place, break open every door, pull up the floorboards and dig up the yard if they want, to search for evidence.
They can force a defendant to open a locked safe, or to give up pieces of themselves far more obviously personal than a password – blood, urine or other samples that provide DNA evidence.
Besides, the DOJ contends, allowing criminals to keep information under wraps simply by encrypting it would take a powerful weapon out of the hands of prosecutors and put it in the hands of criminals.
The laptop was seized during a raid in May 2010, along with other computers and data-storage units as part of an investigation into a con game in which Fricosu and a partner would promise to buy a house by assuming the existing mortgage or replacing it with a new one. After paying the mortgage for a while, they would talk the owner into signing over the title, then sell the house and take off with the money without paying the existing mortgage.
Fricosu 36, of Peyton, Colo. was arrested and charged, in October, 2010 with bank fraud, wire fraud, money laundering and lying to a financial institution to get a loan.
Prosecutors don't know what's on the laptop, but told the court they thought it would be relevant to the case and that letting it stay encrypted would hurt the government in other investigations.
“Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals…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,” according to reports from CNET.
Laptops are more than filing cabinets, however, the EFF argues. They contain deeply personal information and communications among many people, including family members of those the DOJ may have accused.
No one should be forced to help prosecutors convict them, whether or not a laptop holds evidence as well as other private material, the EFF argued.
The DOJ doesn't want the password; it only wants Fricosu to type it in so they can get to the files.
Investigators promise not to look over Fricosu's shoulder or try to find out her password afterward, which seems like a foolish bit of hair-splitting.
Either you can force someone to open a locked door or you can't. Logically a computer and a safe both owned by the same person shouldn't have different levels of protection under the Fifth Amendment, or represent different abilities to store private information.
(If the laptop holds a piece of data so private no court should ever force it from you, but you printed it out and put the printout in the closet, should the closet be more protected than it had been?)
This isn't a warrantless wiretap or rogue FBI investigation based on letters of marque to ISPs and intimidation to get service providers or family members to give up information they shouldn't.
This is a federal court considering the question, with all the due process and diligence to make sure no ethical or legal lines or crossed.
The only question is a conceptual one: Is a computer a metaphysical vessel containing the essence of a person's more private self, the revelation of which would inevitably lead to a conviction for the dark secrets each of us hides from the world?
Or is it a machine holding letters, documents and data that happen to be stored in digital form rather than on paper, that should be opened with the forced cooperation of the defendant to keep from giving criminals an unassailable hiding place for dark secrets that really should lead to convictions?