Can your encrypted disk plead the Fifth?


Kudos to the Department of Justice for chasing and charging mortgage scam perpetrators. But who know that type of case would lead to having the courts decide whether prosecutors can force defendants to give up their laptop encryption password?

Well covered by Declan McCullagh on CNET News, the case concerns Ramona Fricosu and a laptop found in her bedroom during a raid in support of charges of mortgage fraud in Colorado. Reports indicate, but don't say, that the laptop uses some type of full disk encryption. The Feds don't care about the password, they just want Fircosu to type it in and give them access to the files. Lawyers on her side say that's a violation of her Fifth Amendment rights to avoid self-incrimination.

Make 'em work for it

There is no aspect of your life these control freaks don't want to have authority over. -- jaguar717 on CNET
Best to file this under the Fifth Amendment and make the government work to retrieve the data, just as they would have to break a lock to enter a place with a search warrant. -- solitare_pax on CNET
Honestly... the whole point of the fifth amendment was that people couldn't be forced to provide evidence on themselves. Forcing someone to give you the password to their hard drive is forcing them to provide evidence on themselves. If they don't do it... you have no evidence. If you force them to do it, you've got the evidence. -- drfrost on CNET

But, this is no different than a SEARCH ORDER for a file cabinet except for one thing ... TIME ... the cabinet lock could be drilled out in minutes ... the encrypted data could take YEARS. -- brentrbrain on


What's the precedent?

McCullagh writes that the lawyers that make the best analogies to previously-decided cases will likely win. These folks are playing that game:

She could have kept her notes in a secret code on paper and the police would have the exact same right to attempt to decode it. The material was already seized by warrant. All bets are off at that point. The issue of 'unreasonable search and seizure' is already in the rear-view mirror. -- epobirs on TG Daily
You're making a lot of assumptions, friend and your analogy is incorrect. This is more akin to having a safe and the powers that be having the right to break into it without a search warrant. -- joe schmoe on TG Daily
If you have a safe with a combination lock, can the authorities legally require you to either tell them the combination or unlock the safe? The passphrase to allow access to an encrypted drive is equivalent to the combination of a safe, so the same rules should apply. -- Grahamm on Slashdot

Just play dumb

"I'm sorry, but I don't recall my passphrase. I guess the stress of this case has made me forget it!" -- Anonymous Coward on Slashdot
What if your passphrase is "I forgot"? -- Cro Magnon on Slashdot

Are your encrypted files truly private, or can the police force you to unlock them? Speak up: private no matter what, or the police have the right to see your files no matter what. (Private forever, or unlock now?)

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