Does 5th Amend. apply to computer

January 24, 2012

A case out of Colorado has civil rights groups watching with interest as to whether a court can order a criminal defendant to produce evidence against themselves in a criminal case.  The case began when federal agents seized a laptop computer from Ramona Fricosu in 2010 while investigating her for financial fraud.  During her time in jail she was recorded telling others that her laptop holds evidence that may be used against her, but that the government agents would not be able to break the encryption code to get access to the information.  For their part, the government contends that it would take up to ten years and be cost prohibitive for them to attempt to break her encryption key.  They argue that if the court does not make her turn over the encryption key that others will do the same thing, and it will become more difficult to convict people of crimes ranging from child exploitation to financial crimes.  The Federal District Court Judge ordered Ms.  Fricosu to turn over the encryption key, but said that the act of turning it over can not be used against her, while the evidence discovered can be.

Oddly enough, the U.S. Supreme Court has never ruled whether something like this is protected by the Fifth Amendment to the U.S. Constitution.  Under the 5th you cannot be required to say anything that will be used against you.  What is different here, obviously, is that Ms. Fricosu is not being required to say anything, but to produce something physical that will then unlock other evidence that may be used against her. 

I do not know how the Supreme Court would rule on this case.  I suppose they will have the chance to rule on it at some point depending on whether Ms. Fricosu turns over the encryption key or not.  If she still refuses despite the judge's order then look for her to be charged with contempt and locked up in jail indefinitely.  If she does, then everything depends on what is on the laptop. 

Interestingly, had Ms. Fricosu never said anything about her laptop to anyone but her attorney, then it is questionable whether the government would have had enough information to demand her to turn over the key.  Part of the support for the government's argument is that she is heard talking to others about what information may be on the laptop.  Had she never been so free with her words, it is likely that the government would not have had probable cause to believe the laptop contains evidence in the first place.  The lesson here is, keep quiet even if you think there is no way they can access any information you may have hidden.