Digital civil liberties organization, the Electric Frontier Foundation (EFF), appealed to the U.S. District Court of Colorado arguing that encrypted personal data is covered by the Fifth Amendment’s protection against self incrimination.
The group submitted a brief of Amicus Curaie (.PDF) last week on behalf of defendant Ramona Fricosu, in opposition to a government application to access Fricosu’s data in unencrypted form. The EFF agued that permitting such a disclosure would violate the defendant’s Fifth Amendment rights and have “far-reaching consequences for all encryption users.”
Fricosu stands accused of taking part in fraudulent real-estate transactions according to an EFF press release. While serving a search warrant of Fricosu’s home, law enforcement officials confiscated a laptop for which they had an additional search warrant. They have now asked the court to compel Fricosu to enter her password into the computer or turn over an unencrypted version of the data stored on it. The EFF argues that complying with the government’s request will, in effect, turn Fricosu into a witness against herself by granting the prosecution access to information they speculate will help their case but which they cannot specifically identify.
We reached out to both the United States Attorney’s Office for the District of Colorado and the Electronic Frontier Foundation, but neither was immediately available for comment.
According to the brief, the government contends that “Ms. Fricosu could enter the password without being observed by the government, or otherwise provide the unencrypted contents of the [laptop] by means she chose.” This implies there is a difference between typing information and saying it aloud, which the EFF claims there is not.
Fricosu has been offered certain immunities in the event that she provides access to the encrypted data, but the EFF brief claims there is no guarantee that the information found on the laptop won’t be used to prosecute Fricosu.
The question is one with resonance, as more corporations and individuals employ data encryption software to protect sensitive information: can the government compel a witness to provide access to encrypted data on a given computer?
The EFF says no, citing the U.S. Constitution’s Fifth Amendment protection of “expression of the contents of an individual’s mind.” Furthermore, the brief claims that the Supreme Court decided that a witness may be “forced to surrender a key to a strongbox containing incriminating documents,” but not “compelled to reveal the combination to a wall safe.” The EFF believes that forcing Fricosu to supply a password is akin to making her reveal a safe combination, or disclosing information that exists only in her mind as opposed to turning over a physical item, and is therefore unconstitutional. Decryption, the EFF argument goes, is a testimonial act and therefore deserves the full protection of the Fifth Amendment.
That’s not a position shared by the U.S. government, which is arguing that the there’s a high likelihood that the encrypted drive stores incriminating evidence, and therefore a reason to force the defendant to decrypt it.