Suspects Can Be Forced to Decrypt Hard Drives, Judge Rules

In what could become a precedent-setting legal case, a federal judge in Colorado ruled that suspects can be forced to decrypt their hard drives to let authorities search for incriminating files.

In his 10-page opinion, Judge Robert Blackburn ordered Ramona Fricosu, of Peyton, Colo., to decrypt a copy of her laptop hard drive no later than Feb. 21, and threatened her with consequences including contempt of court if she disobeyed the ruling, Cnet reported.

George Smith, a senior fellow at GlobalSecurity.org, believes the judge's ruling, although "commensurate with the times we live in," not only infringes on people's rights, but also sets a very dangerous precedent, one that extends government intrusion well into a person's private life.

Accused of being involved in a mortgage scam, Fricosu has refused to decrypt a laptop the FBI found in her bedroom during a raid, for which agents had a search warrant.

The ruling determines that the Fifth Amendment, which protects people against self-incrimination, does not apply in this case. Blackburn said the amendment poses no barrier to his decryption order; he cited the All Writs Act, which has been used to force telephone companies to aid in surveillance, and said it could be applied to hard-drive decryption as well.

Fricosu's attorney, Phil Dubois, is hoping to get a stay of execution of the order so he can file an appeal.

"I think it's a matter of national importance," Dubois told Cnet. "It should not be treated as though it's just another day in Fourth Amendment litigation." (The Fourth Amendment protects U.S. citizens and residents from unreasonable search and seizure.)

Fricosu may not be able to decrypt the hard drive, which was encrypted using Symantec's PGP Desktop. If so, that would pose another obstacle to the police and the ruling.

"If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," Dubois said.

The judge's order lays out a clear distinction between evidence and testimony. To the judge, the contents of the hard drive are evidence. To the defendant and her lawyer, they're testimony, and hence protected by the Fifth Amendment.

However, a similar case in Vermont in 2009 established that the act of disclosing a password may in itself be testimony. To get around that gray area, the judge is ordering Fricosu to decrypt a copy of the hard drive herself, then hand it back to prosecutors without revealing her password.

Smith said this case is the latest in a disturbing trend of governments burrowing their way into the private life of their citizens. But it's not strong enough to force a drastic revamping of civil liberties.

"There is now a long history of governments using and misusing private digital materials against citizens," Smith told SecurityNewsDaily. "Because this is a small-time criminal case is not an even half decent reason to attempt to nullify that."

Presented with the hypothesis that an ecrypted hard drive might be analogous to a wall safe containing incriminating documents, Smith dismissed it.

"You can keep a lot of your life, or at least a very good description of your years of personal communications, hobbies, work, loves, vices, likes, dislikes and activities from start to finish, etc., on your hard disk and removable drives these days," he said. "You can't keep your life in a wall safe."