Should a Defendant be Compelled to Provide Prosecutor with Password to Encrypted Data?

While a Pennsylvania Court has found that since there is no expectation of privacy in Facebook postings, thus forcing a defendant to turn over the password to her Facebook account (see blog post of November 27, 2011), a Colorado federal court is taking on the bigger question as to whether a defendant can be compelled to produce the password to decrypt information on a laptop to a federal prosecutor.

In U.S. v. Ramona Camelia Fricosu, in which the defendant is charged with real estate fraud, the government wants the key to decrypt information on a laptop found in the defendant’s home.  The home was shared with a co-defendant so it is not necessarily clear who owned/controlled the laptop.   The Electronic Freedom Foundation, in an amicus brief, argues that having Ms. Fricosu disclose the password or even use the password to access the data on behalf of the government is in violation of the defendant’s Fifth Amendment right against self-incrimination since, if the password works, it could be used to show the defendant had ownership and control of the laptop.

The Supreme Court has ruled that the Fifth Amendment protection protects the content of a defendant’s mind, so that while a defendant may be compelled to turn over the physical key to a safe the defendant cannot be compelled to turn over the combination to a safe.  The Government argues that it already has a search warrant for the laptop so that all they are asking Ms. Fricosu to do is equivalent to unlocking the safe.  The Government need not even know the actual password.  The government also argues that if Ms. Fricosu need not turn over the password then really bad guys (e.g. terrorists and child pornographers) will have a means of frustrating prosecution (just like those other darn Constitutional protections).

Although this is a complex case, and I am sympathetic to the government’s frustration over having to try to decrypt the laptop, my money is with the defendant on this one.  The password for the encrypted computer file is exactly like the password for a safe — it is contained in the defendant’s head and is not a physical thing.  Certainly, having the defendant disclose the password would certainly show ownership and control of the laptop.  Judge Blackburn is expected to rule on this issue shortly.