Prosecutors demand password in Fifth Amendment ‘violation’

The Obama administration is calling for a woman accused of a mortgage scam to be forced to reveal her computer password, in what civil liberties groups are calling an assault on Fifth Amendment rights.

Ramona Fricosu’s laptop was seized after she was accused of carrying out fraudulent real estate transactions. But the machine was encrypted, leading the government to demand that Fricosu be compelled to either type the password into the machine or hand over a copy of the data.

She’s had no assurance that the data won’t be used against her.

But according to the Electronic Frontier Foundation (EFF), the request violates Fricosu’s Fifth Amendment right to remain silent. It’s filed an amicus brief on her belald with a Colorado federal court.

“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,” says 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.”

The Justice Department argues that the public interest would be harmed if defendants could simply encrypt potential evidence to keep it out of the public domain.

Failing to compel Ms Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible,” it says.

But if it gets its way, a precedent could be set that would force suspects to hand over all sorts of personal information.

“Our computers now hold years of email with family and friends, Internet browsing histories, financial and medical information, and the ability to access our online services like Facebook,” says EFF staff attorney Hanni Fakhoury.

“People are right to use passwords and encryption to safeguard this data, and they deserve the law’s full protection against the use of it against them. This could be a very important case in applying Americans’ Fifth Amendment rights in the digital age.”