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On Monday, U.S. District Court Judge Robert Blackburn ordered a defendant, charged with bank fraud, to decrypt her laptop so prosecutors could access the files and use them against her in a criminal trial. The hard drive encryption prevented prosecutors from obtaining potentially incriminating evidence stored on it. The court gave her until February 21, 2012 to relinquish the contents of the encrypted hard drive. (You can find the opinion here.) The prosecution learned of the possible incriminating files from a recorded phone conversation between the defendant and her ex-husband who called from jail.
The defendant, Ramona Fricosu, argued that this order violated her Fifth Amendment right against self-incrimination. The Fifth Amendment says that “No person shall . . . be compelled in any criminal case to be a witness against himself. . . .” The Supreme Court has held that the Fifth Amendment “does not independently proscribe the compelled production of every sort of incriminating evidence in Fisher v. United States. 425 U.S. 391, 408. It is only a person’s own “compelled testimonial communications” that are protected. Id. The document itself may not be privileged but the act of producing the document may confirm that the document exists, is in control of the defendant and is authentic. United States v. Doe, 465 U.S. 605, 612. In short, “the government must prove the existence and location of the subpoenaed documents and possess independent evidence, other than compliance with the court order, for authenticating them.” Nathan K. McGregor, The Weak Protection of Strong Encryption: Passwords, Privacy, and Fifth Amendment Privilege, 12 Vand. J. Ent. & Tech. L. 581, 608 (2010).
There are only a few cases deciding similar issues. In Boucher I the magistrate court held that the contents of a defendant’s mind is protected, and by giving up the encryption password the defendant would be forced to reveal the contents of his mind. 2007 WL 4246473 *4 (D. Vt. Nov. 29, 2007) (Boucher I). The magistrate judge was concerned about placing the defendant in the “forbidden trilemma” of either: incriminating himself, lying under oath, or being held in contempt of court. Id. At *3.
However, Judge Blackburn points to In re Grand Jury Supoena to Boucher, 2009 WL 424718 at *2 (D. Vt. Feb.19, 2009) (Boucher II) for support that a defendant can be ordered to produce the contents of the hard drive instead of the password. Here, the prosecution reframed the argument and requested the documents instead of the password. The prosecution could show the existence, location, and a way to authenticate the documents and so the court granted their subpoena. But why is this distinction even necessary? Doesn’t it compel the same result? If a defendant is ordered to produce the password to encrypted files, he gives prosecutors the password; they enter the password while decrypting the files to gain access. If the defendant decrypts the files and gives them to prosecutors, the prosecutor now has access to the files. It appears that the defendant is giving the prosecutor access to the files, however you accomplish the task. Why does the court need to make such a distinction? Either way, it appears the court is placing the defendant into the “forbidden trilemma.” But is it really?
In every case where the court has ruled on this issue, the defendant has, in some way, alluded to the encrypted documents and their illegality to the government. In Boucher the defendant opened his computer up to an ICE agent who saw child pornography files on it, and here the defendant talked to her ex-husband about the encrypted files on a recorded conversation. This allows the prosecution to meet the requirements of existence, location, and authentication of the documents without compelling the testimony of the defendant. It doesn’t appear that the defendant is actually placed into that “forbidden trilemma.”
This issue is larger than can be covered in this blog post. If you have an itching desire to learn more about this growing issue, the article referenced above, The Weak Protection of Strong Encryption: Passwords, Privacy, and Fifth Amendment Privilege, has a much more detailed explanation.
But what do you all think? Do you “feel” like this somehow forces defendants to incriminate themselves? Or is it their own fault for alerting the authorities?
– Nick Barry
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