Earlier this week in Colorado, a U.S. District Court judge Robert Blackburn ordered a woman to decrypt a PGP-scrambled hard drive on her laptop by February 21 or face contempt of court. This case could set a significant precedent in Fifth Amendment litigation.
In that case, CNET reports that Ramona Fricosu was accused of being involved in a mortgage scam. The FBI raided a home that she shared with her mother and children, and found a laptop with an encrypted hard drive. She was subsequently charged with bank fraud, wire fraud, and money laundering as part of an alleged scheme to illegally gain title to foreclosed properties. Investigators wanted to access the contents of her hard drive to find evidence of the alleged fraud. At issue was whether being compelled to decrypt a hard drive was barred by the Fifth Amendment right against self-incrimination.
CNET notes that the Justice Department has argued that the Fifth Amendment right to remain silent does not apply to encryption passphrases. Here, federal prosecutors stressed that they didn't actually need the encryption passphrase or need to watch Fricosu enter it in . Instead, the prosecutors claim that they were merely demanding the encrypted data, not “the password to the drive, either orally or in written form.”
Consequently, Judge Blackburn ruled that a decryption order would not violate Fricosu's Fifth Amendment right against self-incrimination. He also noted that the All Writs Act – which dates back to the Judiciary Act of 1789 – has been used to require telephone companies to aid law enforcement in surveillance and that the Act could be evoked to compel decryption of hard drives.
Fricosu's lawyer has indicated that he will seek a stay of execution of the decryption order and will file an appeal with the 10th Circuit Court of Appeals. This will be an interesting case to watch