Ramona Fricosu, a Colorado woman, was charged with bank fraud, wire fraud, and money laundering for her part in an alleged mortgage scam. During a raid on her home, law enforcement officers seized a laptop computer. Detectives want access to documents on that computer, but the data is encrypted by a password. Prosecutors took the case in front of Federal Judge Robert Blackburn. The judge gave Fricosu until February 21, 2012 to decrypt the hard drive or face contempt of court. Ms. Fricosu’s attorney argued that she has a right against self-incrimination provided in the 5th Amendment of the United States Constitution, and therefore she should not be required to provide data on the laptop that could be used against her in a criminal prosecution. It is not known whether the Federal District Courts in Michigan will take the same position as the federal court in Colorado.
Is password protected info safe from subpoenas?
Legal scholars across the United States have debated whether password-protected information is safe from law enforcement subpoenas. Prosecutors liken computer passwords to possessing a key for a safe filled with incriminating documents. In many circumstances, a person could be legally compelled to hand over the key, even if the documents inside the safe are incriminating.
As Michigan criminal defense attorneys, on the other hand, feel computer passwords are testimonial communications that are shielded from law enforcement by the Fifth Amendment. Courts have held that contents of a defendant’s mind are protected, so an argument can be made that the password is protected, too. Whose side do you take? Do you think Ms. Fricosu should be required to decrypt the computer? Did Judge Blackburn go too far in helping the police?