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Legal Technology: Can the Government Force You to Decrypt your Laptop?
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July 13, 2011

Can the Government Force You to Decrypt your Laptop?

By Tracey E. Schelmetic, TMCnet Contributor


So here's the legal question of the day: can the government force you to hand over the password or encryption to your computer if it thinks you've done something wrong?

It's a really good question, and nobody quite knows the answer.

The Obama administration has asked a federal judge to order a Colorado woman named Ramona Fricosu to decrypt an encrypted laptop that police found in her bedroom during a raid of her home. Fricosu and her husband Scott have been charged with a variety of crimes, including bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs that were facing “imminent foreclosure” or whose owners were relocating outside the state, reported.


Fricosu refused to decrypt the laptop, and nobody is really sure what to do next. Legal precedent is a mixed bag of wisdom, and there are no cases that quite match the circumstances, hence the uncertainty.

Prosecutors believe they can force Fricosu to give up the password encryption and have likened the scenario to someone possessing a key to a safe filled with incriminating documents. Existing law says that person can, in fact, be legally compelled to hand over the key. Plus, the U.S. Supreme Court has ruled that defendants can be compelled to provide fingerprints, blood samples, or voice recordings.

Civil libertarians disagree with this assessment based on Supreme Court precedent that ensures defendants cannot be compelled to provide “testimonial communications” that fall under Fifth Amendment rights to avoid self-incrimination.

The U.S. Supreme Court has yet to address a similar case, but in 2010 a federal judge in Michigan ruled that a man suspected of holding child pornography on his computer could not be compelled to give up his password. (However, in 2009, a federal judge in Vermont made an opposite ruling regarding a man suspected of having child porn on his computer, hence the confusion).

Conflicting precedent means no one is quite sure which way Fricosu's case is going to go. The Department of Justice seems certain that Fricosu can be compelled to give up the password – hence the Obama administration's request. Back in May, Assistant U.S. Attorney General Lanny Breuer gave his consent to John Walsh, the U.S. Attorney for Colorado, to compel Fricosu to decrypt the computer. 

Fricosu's attorney, however, appears ready to fight for her right not to do so. A ruling is expected from either federal Magistrate Judge Michael Hegarty or District Judge Robert Blackburn, says CNET.

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Tracey Schelmetic is a contributing editor for TMCnet. To read more of Tracey's articles, please visit her columnist page.

Edited by Jennifer Russell


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