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 []