UPDATE – Fricosu and the 5th Amendment

The Issue

For the last year or so, there has been a debate raging that seems to defy common sense. Namely, the debate concerns the 5th Amendment’s protection against self-incrimination. We’ve all heard congressmen, mob bosses, and steroid-riddled professional athletes use these protections to the point where, “Pleading the Fifth,” is part of the American lexicon.

See one of my favorite examples below:

The Debate – Fricosu and the 5th Amendment

The case in question( discussed here, here, and here), involved a mortgage fraud case out of Colorado where incriminating files were contained in a laptop with encryption so good the investigators and prosecution had no chance of recovering them without violating the defendant’s right to a speedy trial.

Common sense, at least to this blogger, would say that forcing a defendant to decrypt his or her own hard drive for the prosecution violates 5th Amendment protections and is tantamount to doing the prosecutions job for them. Initially, the 10th Circuit begged off an appeal of the lower court order. This was, in theory, because they wanted to hear the case fully on appeal instead of ruling just on this specific order.

Common sense, however, gets lost in the details. The order by Judge Blackburn states that, although providing her password to the prosecution in order to enable them to decrypt her hard drive will violate her 5th Amendment protections, being forced to use her password to decrypt the hard drive and then turn the hard drive itself over to the prosecution is perfectly legal. This is based on a preponderance of the evidence standard, reached because the government has enough evidence to believe that the hard drive has incriminating files1

Well, the defense will do just that. The federal justice machine moves slowly, at times, and Miss Fricosu’s sentencing hearing (after a plea deal was reached) is set for August 8, 2013.2 Most plea agreements, including this one, now contain a waiver of appeal, a tactic brought to you originally by former federal prosecutor Bill Otis. This means that a defendant waives their ability to appeal. Fortunately, Miss Fricosu’s plea agreement adds an exception to the appeal waiver to bring up this issue at the 10th Circuit again after her case is finalized at the district level.

Ramifications and a Circuit Split

The idea that decrypting files for the government does not violate 5th Amendment privileges got its start with sex offense cases. It is easy to bend or even break constitutional protections against very distasteful defendants such as those charge with child pornography possession. The problem, however, becomes the extension of these constitutional ‘bends’ to the rest of the population.

This recent article from the folks over at ARS Techinca entitled “Fifth Amendment shields child porn suspect from decrypting hard drives” delves into the ramifications of these rulings moving forward, and how not all district judges agree with this ‘bend’. The article gets started this way:

A federal judge refused to compel a Wisconsin suspect to decrypt the contents of several hard drives because doing so would violate the man’s Fifth Amendment right against self-incrimination. Judge William E. Callahan’s Friday ruling ultimately labeled the issue a “close call.”

Courts have wrestled with how to apply the Fifth Amendment to encrypted hard drives for several years. According to past rulings, forcing a defendant to decrypt a hard drive isn’t necessarily self-incriminating, but forcing a defendant to decrypt a hard drive can amount to self-incrimination if the government can’t otherwise show that the defendant has the password for the drive. In that case, forced decryption amounts to a forced confession that the defendant owns the drive.

Adding to this mix is this opposite Eleventh Circuit ruling from the same time as the Fricosu issue was becoming national news. It seems as though this issue will need to be settled by the U.S. Supreme Court, but it could be years before Cert is filed and granted in one of these cases.

Keep checking in, as updates will come as more events unfold around the country in this important electronic privacy and self-incrimination issue.

  1. This, because Fricosu said as much during a phone call from jail, which are all recorded. Bloggers note: this muddies the water quite a bit. Once the government knows there’s evidence, it makes the “self-incriminating” piece to this issue almost null. They want access to the hard drive that they’re POSITIVE has incriminating files on it, by Fricosu’s own words. The issue, though, is if Fricosu can be forced to help when self-incrimination has already kinda happened. []
  2. Sentencing hearing was set by order on 4/16/13 []

The 11th Circuit, Fricosu, and the 5th Amendment

Electronic Decryption Orders

As can be read in our previous posts (here and here), a case in Colorado has caught the attention of the nation in its implications on the 5th Amendment to the United States Constitution.

This case touches on the Constitution, fraud, sex offenses, electronic freedoms, and many other incredibly important topics. Yesterday, the 11th Circuit Court of Appeals took up the topic in a separate case (US v. Doe) and disagreed with their own lower court’s mandate to supply unencrypted data for the prosecution. In Doe, the defendant was ordered to produce an unencrypted version of his hard drive(s). Doe refused to comply. From In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011:

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED.

Back Story

In Colorado, a defendant (Fricosu) may or may not have incriminating evidence on her laptop hard drive that was seized by authorities. The government asked for, and was granted, an order forcing Fricosu to produce a decrypted copy of that hard drive. Fricosu appealed, saying that doing so violates her 5th Amendment protections against self-incrimination. The appellate court refused to rule until the case was finished in the lower court.

The order forcing Fricosu to give over potentially incriminating evidence, and other similar orders from around the country, has troubling implications on the 5th Amendment in the new, digital world.

…and even further back…

In Fricosu, the presiding judge relied heavily upon the very limited precedents from around the country. Every one of these precedents were from child pornography cases where the courts didn’t seem to mind infringing on 5th Amendment protections, so long as sex offenders were the losers.

As with all history, equal protection exists for everybody, and infringing on one (hated) groups rights will eventually spill over onto the rest of the population.

Equal Protection

It may be hard to do, and sometimes even harder to stomach, but protecting the rights of the least popular citizens of any society is vital. This effort prevents [G]overnment from “taking a mile” for every inch of leeway given to it.

Kudos to the 11th Circuit for making this decision. Let us all hope that, regardless of coexisting immunity given to defendants, the 10th Circuit will follow suit and not allow its lower courts to be so cavalier with the 5th Amendment.

Update: Fricosu, The 10th Circuit, and the 5th Amendment

U.S. v. Fricosu

2/23/12 – As we previously discussed in this post, the government wants to force the defendant in the above-titled case to turn over an unencrypted hard drive that may or may not have incriminating evidence in it. The district judge granted the governments motion to force the defendant to supply the hard drive. This decision was appealed to the 10th Circuit Court of Appeals, who refused to rule.

Note: Demanding an actual password violates the 5th Amendment protections. The presiding judge in Colorado side-stepped this issue by not requiring Fricosu to give up her password but, instead, requiring her to produce the decrypted hard drive by using her password.

Because the appeals court chose to let the case run its course in the lower court before allowing the issue here to be raised on appeal, the ruling stands and Fricosu has until Monday to turn over the unencrypted version (read: a copy) of her laptop hard drive.

The Future

This case has frightening implications on the 5th Amendment to the U.S. Constitution. The process will get rocky. Fricosu can refuse to produce the hard drive1 and face contempt charges,2, or she can comply and face conviction if the incriminating material that the prosecution believes is on the hard drive is actually there.

If she complies and is convicted3, only then can she appeal her conviction to the 10th Circuit Court of Appeals to challenge the order to produce the hard drive that directly led to her conviction.

Updates will be posted as they come in!

  1. If she is able to. Her defense attorney says she may not have the capabilities to even comply with the order []
  2. Under rule 42 of the Federal Rules of Criminal Procedure []
  3. Where that conviction is predicated primarily upon the evidence from the unencrypted hard drive []