U.S. v. Fricosu, 10-CR-00509 (D. Colo. January 23, 2012)
Pursuant to a warrant, federal agents seized defendant’s laptop from her home. When investigators turned it on, they saw the hard drive’s contents were encrypted using PGP Desktop. Defendant would not voluntarily turn over the password to decrypt the drive, so the Government filed an application under the All Writs Act to require defendant to “assist” in the execution of the search warrant. Defendant objected, asserting her privilege against self-incrimination under the Fifth Amendment.
The court rejected defendant’s arguments, granted the Government’s application and ordered defendant to provide an unencrypted copy of the hard drive. It found that the situation did not implicate defendant’s Fifth Amendment rights.
The Fifth Amendment provides that no person shall be compelled in any
criminal case to be a witness against himself. For the most part, this privilege only covers testimony. But an act that implicitly communicates a statement of fact may be within the purview of the privilege as well. For example, producing a document (or electronic data, for that matter) is an acknowledgment that the material:
- exists
- is in the possession or control of the producer
- is authentic (i.e., is what it purports to be)
The court held that defendant’s Fifth Amendment rights were not implicated because providing an unencrypted copy of the hard drive did not serve to accomplish any of the three points listed above.
The feds had confiscated the computer, so they knew of the location and existence of the computer files. (The court found that the fact that investigators did not know the specific content of any specific files on the computer did not matter.) And as for the authenticity of the computer files, the government would presumably be able to do that in other ways. Among other things, the computer was found in defendant’s bedroom. Information on the screen that showed up when it was turned on contained defendant’s first name. And perhaps most damningly, investigators had a taped phone conversation between defendant and her ex-husband discussing the computer and the fact it was password protected.