July 12, 2011, 1:46 PM — 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.