Fifth Amendment in the 21st Century

[Aslanna]

The Electronic Frontier Foundation filed a brief in a federal Colorado court that defendant Ramona Fricosu—accused of real estate fraud—has a 5th Amendment right against self-incrimination in providing authorities with an encrypted password.


Ramona Fricosu stands accused of real estate fraud and is on trial in a Colorado. The prosecution has asked the Court to demand Fricosu offer up her encrypted password, to which she and her Colorado Springs attorney Phil Dubois have refused on the grounds that would violate her 5th Amendment right to self-incrimination.

This has made the case most interesting and, indeed, a highly critical juncture in the surveillance state that is currently being built around technology. If Dubois can resist the Department of Justice’s efforts to acquire Fricosu’s encrypted password, he will have proven that the encrypted password is equivalent to Fricosu’s mind and thus protected by the 5th Amendment.

Dubois summed it up nicely in an interview with CNET by stating the government’s intent thusly, “Make her decrypt the drive for us, and we won’t tell the jury that she’s the one who decrypted the drive for us. But we want to use everything we find in there against her.”

Dubois added:

“The government is trying to expand its power. Back in the PGP days, the government was trying to prevent, futilely, the spread of encryption software around the world. Now they’re trying to increase their power by narrowing the Fifth Amendment. Like the others, the Fifth Amendment is aimed directly at the government, primarily the executive. The executive wants, as it always has and always will, to narrow the Fifth Amendment and thereby increase its own power.”

The Department of Justice’s argument is based on the All Writs Act, which dates to 1789 (amended several times thereafter), which states, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

In other words, the writ grants the court power to enforce an order by making sure all necessary actions are carried out to ensure its execution; which is to say, it was hardly designed to enforce the deliverance of an encrypted password unto the government.

The government has issued Fricosu limited immunity, but as the EFF website states, it “has not given adequate guarantees that it won’t use the information on the computer against her.”

In response, the EFF issued an Amicus Curiae Brief—a ‘friend of the court,’ or party that provides information to a court in the decision of a matter—arguing:

The Fifth Amendment generally protects a person from being compelled to give testimony that would incriminate her. (United States v. Hubbell, Fisher v. United States)… The privilege is limited to testimonial evidence, or a communication that “itself, explicitly or implicitly, relate a factual assertion or disclose information.” (Doe v. United States)… Put a different way, the privilege protects the “expression of the contents of an individual’s mind.“

[T]he Supreme Court has explained that a witness might be “forced to surrender a key to a strongbox containing incriminating documents,” but not “compelled to reveal the combination to a wall safe.” …Forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender a key: the witness is being compelled to disclose information that exists in her mind, not to hand over a physical item.

The EFF then concludes in the Amicus Curiae Brief:

The government is overreaching to try to compel Fricosu to supply an encryption password that they hope will give them access to the full contents of a laptop. The Court should decide this important constitutional question in a way that recognizes the substantial benefits of encryption to safeguard the security and privacy of digital information stored on computers. New technologies present new challenges for law enforcement, but this reality does not justify the abandonment of well-established constitutional protections that secure individuals’ rights. Decrypting data is an act with testimonial aspects that are protected by the Fifth Amendment. The government cannot identify the evidence it hopes to find with any specificity, and it has not offered Fricosu immunity coextensive with her Fifth Amendment privilege against self-incrimination. For all the reasons discussed above, the government’s application should be denied.

The critical point is that the encryption password exists in Fricosu’s head and that to offer it up is to self-criminate—the fact that Fricosu might have committed a number of fraudulent acts is irrelevant.

Let’s hope that Dubois prevails and the court agrees. If not, expect an appeal.

I find this story interesting. Should a password (or encryption key) be protected under the 5th Amendment? My opinion is yes! If they can brute force it by all means go ahead but someone shouldn't be required to turn it over. Yes I realize this could let undesirables get away with rather some unsavory crimes but that's the price you pay to live in a free society.

[Jice Virago]

If there was evidence in a lock box, the courts can compell the person to produce the key for said lock box. I don't see a distinction here, as its just a different kind of key. The password is not being used in open testimony and not going to, of itself, be an incrimination against the defendant. Too much room for abuse by people with access to top notch encryption software (read rich bankster bastards), when the average person would not have access to something of this nature.

[masteen]

If there was evidence in a lock box, the courts can compell the person to produce the key for said lock box. I don't see a distinction here, as its just a different kind of key. The password is not being used in open testimony and not going to, of itself, be an incrimination against the defendant. Too much room for abuse by people with access to top notch encryption software (read rich bankster bastards), when the average person would not have access to something of this nature.

This point is rebutted in the quoted text:

[T]he Supreme Court has explained that a witness might be “forced to surrender a key to a strongbox containing incriminating documents,” but not “compelled to reveal the combination to a wall safe.” …Forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender a key: the witness is being compelled to disclose information that exists in her mind, not to hand over a physical item.

Unless you're arguing that a password is more similar to a key for a lock box than to a combination to a safe. Which would just be stupid.

[Jice Virago]

Missed that part, but its equally stupid. Plus neither analogy really holds because you can physically force entry into either item, but not really so much with encrypted data. In any case, its just a great way for people doing shady shit with money to hide their bullshit.

[masteen]

Yeah, but not really. Unless the corporate personhood assclownery reaches a truly ludacrist level and company property is given these same protections, this sort of malfeasance will always be fairly limited in size.

I'm willing to tolerate that level of corruption in order that my personal liberties be protected.

[Jice Virago]

Exhibit A- Citizens United
You already have an assinine ruling that makes corperations count as people under the law.

[masteen]

I agree it was a stupid ruling (corporations = people and cash = speech), but it's scope is fairly limited. It's not relevant to this particular discussion, YET. I have no doubt the neocons and their sociopath overlords have plans to expand this, but I cannot and will not let fear of that possibility curtail my personal freedoms.

[Zaelath]

Too much room for abuse by people with access to top notch encryption software (read rich bankster bastards), when the average person would not have access to something of this nature.

This is patently false...

Regardless, the 5th is stupidly written and applied, but so are contempt laws that compel people to answer questions. I guess it depends if you think Minority Report was a utopian or dystopian future, I tend toward the later.