Fifth Amendment doesn’t cover encrypted hard drives

Posted by Trent Nouveau

A federal judge in Denver has ordered a bank-fraud suspect to unlock her encrypted hard drive for prosecutors to peruse.



Civil liberties advocates staunchly opposed the ruling, noting that such a precedent serves only to undermine constitutional protections in an uncertain digital age.



Fifth Amendment doesn’t cover hard drivesHowever, U.S. District Judge Robert Blackburn disagreed, claiming unlocking the laptop wasn’t a self-incriminating act and didn’t violate the Fifth Amendment.

According to Blackburn, decrypting the drive won’t prove anything that the government doesn’t already know.

"[I]t is more likely than not that the computer belonged to and was used by [Ramona] Fricosu," Blackburn wrote in a statement obtained by the Denver Post. 



"Accordingly, I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the laptop... [And] the fact that (the government) does not know the specific content of any specific documents is not a barrier to production."

Blackburn’s decision will undoubtedly please prosecutors, who insisted that allowing suspects to thwart search warrants by encrypting their devices would impair the ability of law enforcement officials to collect evidence in the future.

Fricosu's attorney, Philip Dubois, has vowed to appeal the controversial ruling, which he says is of "national importance."

Dubois’s appeal is backed by the Electronic Frontier Foundation (EFF), which plans on filing a supporting motion with the 10th Circuit Court of Appeals.



"We still think the Fifth Amendment protects the compelled disclosure of the password or the decrypted contents of the computer," EFF spokesperson Hanni Fakhoury reiterated.