Court Order to Turn Over Unencrypted Files not the Same as Order to Turn Over Password (Fricosu Revisited)

In my first post of this year I commented on U.S. v. Ramona Camelia Fricosu, in which it was widely reported the government was trying to compel the Defendant to turn over the password to an encrypted hard drive found on a computer in her home. See: http://simonkraussprivacyeye.com/2012/01/08/should-a-defendant-be-compelled-to-provide-prosecutor-with-password/

I, and others, believed the court would not allow the government to compel the Defendant to turn over the password as the 5th Amendment protects against compelling a Defendant to self-incriminate and turning over a password shows control over the encrypted hard drive and any incriminating information on it.  Basically, the Defendant does not have to disclose something in their mind that is self-incriminating. For example, another court found that a Defendant did not have turn over the combination to a safe.

This past week, the judge made his decision. Contrary to what others may report, In the Fricosu case, Judge Blackburn did order Ms Fricosu to disclose the password to the computer found in her home.  He did order her to turn over the unencrypted files.  While the result is the same, the government gets to see the unencrypted files, there is a difference between having the government compel the disclosure of a password as opposed to the unencrypted hard drive.

First, it helps to know some key facts.  Firstly, the government had a lawfully acquired phone surveillance tape between Ms. Fricosu and her ex-husband in which they acknowledge that the computer is hers.  Second, the encrypted file on the computer was called “WORKGROUP Ramona” which the government demonstrated would be the name the computer would automatically assign the file based on who owned the computer.  Lastly, the government had offered Ms. Fricosu immunity for her testimony.

Previous case law has established that the government can compel a defendant to turn over something that the government lawfully knows exists (as opposed to government knowing about something based on unlawful acts).  In this case, the government knew the file existed and that is was under Ms. Fricosu’s ownership and control.  The government also presented detailed evidence which convinced Judge Blackburn that no one else had just named the file “Ramona” or that the computer had been moved during the search of her home.

From the judge’s perspective, by a preponderance of the evidence, the government knew it was Ms. Fricosu’s computer and the she had created the file.  In addition, the government could not use the fact that Ms. Fricosu decrypted the file as evidence to prosecute Ms. Fricosu in any prosecution.  Therefore, there was nothing incriminating in having Ms. Fricosu turn over to the government the unencryped file.  Unlike a password, the file was not in Ms. Fricosu’s mind and, in any event, whatever was in the file couldn’t be used against her.

The case may have come out differently with a different set of facts.  I am left wondering about, as it was apparently not  argued (or at least addressed in the Order) is that Ms. Fricosu is ordered to produce something that does not exist.  There was no unencrypted file until Ms. Fricosu was ordered to create it.

A copy of Judge Blackburn’s order may be found at: http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf