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 files ((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.))
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. ((Sentencing hearing was set by order on 4/16/13)) 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.