Can the Government Force You to Unlock Your Computer?

Via the Denver Post: An interesting case in federal court in Colorado: The feds seize a computer pursuant to a search warrant. But when they try to access the data, it's encrypted. Can the court force the computer owner who is now a criminal defendant, to unlock the data?

Ramona Fricosu and her ex-husband Scott Whatcott are indicted for bank fraud arising from an alleged mortgage scam in Colorado Springs. The feds say the incriminating evidence is on the seized computer.

The Government is asking the Court, under the authority of the All Writs Act, to force Ms. Fricosu to unlock the data. [More...]

Civil-liberties groups nationwide have taken notice, saying the case tests the strength of rights against self-incrimination in a digital world. Prosecutors, meanwhile, say that allowing criminal defendants to beat search warrants simply by encrypting their computers would make it impossible to obtain evidence in an age when clues are more likely held within a hard drive than a file cabinet.

The answer may turn on whether the Judge decides the password should be viewed as a key to a lockbox, in which case there is no 5th Amendment protection, or as a combination to a safe.

While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the "expression of the contents of an individual's mind" — is.

The Government, in its motion (available on PACER) says it isn't asking her to divulge the password, just to use it to unlock the computer:

This Application seeks an order requiring Ms. Fricosu to make available the unencrypted contents of the Subject Computer. This could be accomplished by having the encrypted Subject Computer available in the courtroom. Upon order of the court, Ms. Fricosu could enter the password without being observed by the government, or otherwise provide the unencrypted contents of the Subject Computer by means she

The Government adds:

If the requested relief is granted, the government would arrange to have computer forensic personnel standing by to prepare a forensic image of the unencrypted version immediately. The unencrypted version could be further copied for each of the defendants.

According to the Government's motion:

®equiring Ms. Fricosu to provide the Government with access, by entering the necessary encryption keys to the digital media that the Government already possesses pursuant to a valid search and seizure warrant, amounts to compelling Ms. Fricosu only “to surrender the key to a
strongbox containing incriminating documents.”

The Government seems to concede Ms. Fricosu has a fifth amendment privilege as to the act of production of the unencrypted contents, and to get around that, it asked the court to grant her limited immunity, meaning immunity only as to act of producing the key and not what it discovers on the computer as a result of it.

EFF filed an amicus brief (available here) supporting Fricosu. It argues forcing a defendant to decrypt her laptop to assist a criminal investigation against her erodes the protections of the 5th Amendment.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

It also argues the limited grant of immunity is insufficient. It says for the immunity to comply with the scope of the 5th Amendment privilege, it would have to include the evidence on the computer derived from her act of production.

The government’s offer of limited immunity—with no guarantee against use or derivative use of the information Fricosu would be forced to supply— is not comprehensive enough to secure Fricosu’s Fifth Amendment rights. She is therefore justified in refusing to provide the password.

A third hearing on the issue was held yesterday and the Court took the matter under advisement.

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    It does seem that the limited immunity (5.00 / 0) (#1)
    by ruffian on Wed Jan 04, 2012 at 04:12:00 PM EST
    is pretty worthless. I guess it just immunizes her from any criminality involved with admitting she has the key to that computer?

    What would happen if they had a warrant to search your house but somehow you had made it un-enterable? I guess it would be a Waco situation?


    If the SC thinks the combination to a safe (5.00 / 2) (#2)
    by vicndabx on Wed Jan 04, 2012 at 04:21:57 PM EST
    is covered, don't see how a password isn't the same thing.

    password: a sequence of characters required for access to a computer system

    You make up your own password, anyone can get a copy of a key.

    I view it differently (none / 0) (#11)
    by waldenpond on Wed Jan 04, 2012 at 11:17:23 PM EST
    If you get encryption data that can't be broken, I view it as the same as documents that can't be located.  The could have been taken to the dump or the could be in a storage shed somewhere.  The existence is known but they can't be accessed for many reasons.

    Wasn't there a similar case before? (5.00 / 1) (#13)
    by SeeEmDee on Thu Jan 05, 2012 at 10:04:43 AM EST
    Boucher, I think it was.

    How long can she be held in contempt.... (none / 0) (#3)
    by magster on Wed Jan 04, 2012 at 04:45:08 PM EST
    ... if the court orders her to do it? What if she's like, "I can't remember the password."

    Has she conceded in the pleadings even knowing the password?

    Seems like she should say her ex... (none / 0) (#4)
    by magster on Wed Jan 04, 2012 at 04:56:01 PM EST
    ... set up the password, and vice versa. Then what, if you're the government?

    Seems to me that (none / 0) (#5)
    by Zorba on Wed Jan 04, 2012 at 05:13:03 PM EST
    they either grant her full immunity, or they can go whistle down the wind.  Sounds like the ACLU should get involved in this one.

    This does not speak well (none / 0) (#6)
    by Towanda on Wed Jan 04, 2012 at 05:40:32 PM EST
    for the feds' ability to break encryption codes on many other matters, does it?

    While they may be able to break the (5.00 / 0) (#8)
    by KeysDan on Wed Jan 04, 2012 at 05:53:54 PM EST
    codes, just as they could determine a safe combination, it does not relieve them of Fifth Amendment protection, in my view.

    That caution could make sense, if (none / 0) (#9)
    by Towanda on Wed Jan 04, 2012 at 06:43:32 PM EST
    the feds had not already seized the computer.

    I don't think that they did so because they wanted the hardware.


    Has the government tried... (none / 0) (#7)
    by magster on Wed Jan 04, 2012 at 05:43:05 PM EST
    "123456" or "QWERTY" yet?

    Too bad Nixon didn't... (none / 0) (#10)
    by diogenes on Wed Jan 04, 2012 at 06:49:15 PM EST
    If Nixon kept his White House tapes on a computer instead of as tape recordings, then I guess history would have been different.

    This is interesting. (none / 0) (#12)
    by Gerald USN Ret on Wed Jan 04, 2012 at 11:50:07 PM EST
    This is interesting.  I have a bright young niece who works in Technology, Investment, and Venture Funding.  I will have to check with her.  She is always interested in this kind of thing.

    Anyway, this is actually an old problem.  The Government has a lot of capability mainly in the NSA (we laughed and called it "no such agency" it was so secret), which everyone has heard about, but it is always maxed out.  (i.e. Totally tasked 120 percent usually, with a long waiting queue.)  Since this is not a National Security Issue of the FIRST order, it will not qualify for NSA supercomputer time.
    A case in point was a gangster that had all sorts of funds and activities and he was in prison.  The Feds thought his son did his book keeping etc but the son used at least 128 bit encryption or even 256.  I am not sure which for this case was a while ago.  The Feds had warrants to search the house openly or even surreptitiously and they had a copy of the hard drive on the computer, but they couldn't break the encryption.  I don't remember what the son's answers were to questions about access.

    Anyway, one day the Feds came to the court and said that they had "opened" the computer hard drive up and had all the info to make further charges.  The defendant's lawyer demanded to know how the Feds were able to break this encryption which had delayed them so long.  This issue alone went on for months.  Everyone thought a  Supercomputer had done it.

    No, it was simply a small piece of hardware that had been attached and hidden in the computer's keyboard called a keystroke logger, or key logger.  It memorized each and every keystroke made for months.  There are also software bugs that do the same thing.  (It turned out the son used a combination of his dad's prisoner number, and some family related things.)

    As for what you say to a subpoena, if you can't legally fight it anymore, it might go like this:

    "I had a 256 bit code of special characters, small letters, large letters, and numbers and  there was no way I could memorize it so I kept it written on a strip of paper."
    "I ate/lost it/flushed it/burned it months ago."

    A better story was of a very bright CTO (chief technical officer)that became the CEO and then lost the company or something like that.
    Anyway, for years he had been talking about a new methodology that would revolutionize the industry.  Had given many talks on it, and had persuaded the board and the rest of the company that it would be the next big thing.  It was a big part of the company's future and even went into their annual reports.  
    When they bumped him out, they wanted the technology and the court sided with them, but it had been so secret that nothing or very little detail had ever written down or it had been destroyed after working through, say a problem.

    The question was posed like this, and it relates to the case in this thread.

    Supposedly the court could order a man to surrender a password or a key, or it could authorize the overpowering (sometimes) of the lock or password of the hard drive, but how do you get a man to give up a long string of complex interrelated thoughts in a way that made sense.

    (I don't know how that was resolved.)

    This Seems Really Silly... (none / 0) (#14)
    by ScottW714 on Thu Jan 05, 2012 at 02:57:29 PM EST
    Basically they are saying they will have the proof once the defendant gives them access to it.

    What is the government going to do if the proof isn't there, or... there is some sort of self destruct program she can initiate.  She must have some skills if the government can't crack it.

    But this goes to a more common issue, phones.  With all the new phone laws, they need access to know if you were texting.  I don't believe some of these rinkydink cop shops have the skills to do it.  Are they forcing people, or do they bypass the phone and go to the carrier ?  Seems like that wouldn't work if they text was never sent.

    which encryption program? (none / 0) (#15)
    by zaitztheunconvicted on Fri Jan 06, 2012 at 11:46:40 AM EST
    Of course, my immediate reacton is to wish to know which encryption program she had chosen to use . . .  apparently the gov breaks some of them and not others, and this is a surprise.


    However, re the 5th amendment protections . . . I hope he rules that it does protect her from being required to open the computer.

    Plausible deniability - according to TrueCrypt: (none / 0) (#16)
    by Mr Natural on Fri Jan 06, 2012 at 06:42:03 PM EST
    Plausible deniability, hidden volumes, encrypted disk partitions, hidden volumes in hidden volumes...

    SITE VIOLATOR (none / 0) (#18)
    by CaptHowdy on Sat Aug 01, 2015 at 06:57:47 AM EST